MALIK ABDELRAZIG, Employee/Appellant, v. AMERICAN BOTTLING CO., and BROADSPIRE/RSKCO, Employer-Insurer, and MN DEP=T OF EMPLOYMENT & ECON. SEC., FAIRVIEW HEALTH SERVS., SPORTS & ORTHOPAEDIC SPECIALISTS, NORAN NEUROLOGICAL CLINIC, MN DEP=T OF HUMAN SERVS., MULTICENTER PHYSICAL THERAPY, UNIVERSITY OF MINN. PHYSICIANS, UCARE MINN., and PRUDENTIAL INS. CO., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 16, 2006
PRACTICE & PROCEDURE - INDEPENDENT MEDICAL EXAMINATION. The compensation judge did not abuse her discretion in extending the deadline for an examination at the employer and insurer=s request past 120 days and the compensation judge at hearing did not err by admitting the report from that examination into evidence.
CAUSATION - TEMPORARY INJURY; TEMPORARY TOTAL DISABILITY. Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee=s injury was temporary. The compensation judge erred by awarding TTD benefits and medical expenses after the date the temporary injury ended.
MEDICAL TREATMENT & EXPENSE - DIAGNOSTIC TESTING. The employee=s treatment for his left shoulder injury included necessary diagnostic testing and examinations, which is compensable, even though the diagnosis is later determined to be of a non-work-related condition.
Affirmed in part and reversed in part.
Determined by Rykken, J., Wilson, J., and Johnson, C.J.
Compensation Judge: Harold W. Schultz, II
Attorneys: Scott P. Heins, Scott P. Heins & Associates, Vadnais Heights, MN, for the Appellant. Janet Monson and Naomi Liebo, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee appeals the compensation judge=s admission of a medical report and the judge=s finding that his work injury was temporary in nature. The employer and insurer cross-appeal the compensation judge=s award of medical expenses and his award of temporary total disability while the employee was traveling outside of the country, while he was disabled from employment due to a nonwork-related knee condition, and 90 days following the date on which the employer and insurer served the employee with notice of having reached maximum medical improvement. We affirm in part and reverse in part.
On September 13, 2004, Malik Abdelrazig, the employee, was working as a merchandiser for American Bottling Company, the employer, which was insured for workers= compensation liability by Broadspire Services/RSKCO. The employee had started working for the employer in 2001 as a merchandiser. He testified that on September 13, 2004, he was stocking shelves with 2-liter bottles of beverages when he heard a Apop@ in his left shoulder. Since that date, the employee has been totally disabled or under restrictions which prevent him from returning to his regular job.
The employee has a pre-existing condition of unknown etiology which has caused the muscles in his left shoulder to atrophy. The employee testified that as early as 2002 he had noticed that his left arm was smaller than his right arm, but that he did not seek treatment for this condition and that he was able to work without restrictions or time off of work until his injury on September 13, 2004. On that date, following his injury, the employee consulted Dr. William Isaksen. The employee reported to Dr. Isaksen that for the past three weeks he had been unable to lift his left arm above his shoulder, and that his left shoulder Alooked different,@ and therefore he had come to the clinic for further evaluation. At that exam, the employee referred to an injury to his left shoulder and arm in October 2001; Dr. Isaksen=s chart note includes no history or reference to an injury on September 13, 2004. Dr. Isaksen could not determine whether the injury was work-related. In his chart note, he stated that the employee Ahas had left shoulder problems for a significant period to account for the amount of atrophy which I see on his examination today. The exact source of this atrophy is undetermined. In addition to a possible rotator cuff tear one would certainly have to consider a central neurologic source.@
The record contains medical records documenting previous injuries and treatment of the employee left shoulder and neck. The employer and insurer denied primary liability for the employee=s condition and injury of September 13, 2004. Following that injury, the employee has undergone neurological, orthopedic and neurosurgical examinations and has consulted with or was referred to numerous physicians, all of whom had difficulty diagnosing his left shoulder condition. He treated with Duane Gertzen, a physician=s assistant, and Dr. David Dorn, who referred the employee to Dr. Daniel Buss, an orthopedist who specializes in shoulder treatment. Dr. Buss indicated that surgery was not recommended. The employee was also referred to Dr. Stephen Haines, who ordered an MRI, which was read as normal.
The employee was examined by Dr. Ronald Bateman in January 2005. Dr. Bateman later concluded that the employee sustained a work-related left brachial plexus injury with mysfascial dysfunction about his left shoulder and that he had pre-existing chronic muscle paresis which prevented him from recovering from this injury. Dr. Bateman concluded that the employee=s work injury of September 13, 2004, was a substantial contributing factor in aggravating his pre-existing condition, and assigned physical work restrictions on lifting and on the use of his left upper extremity.
On October 26, 2004, the employee filed a claim petition for temporary total disability benefits from and after September 14, 2004, and medical expenses. On May 25, 2005, at the employer and insurer=s request, the employee attended an independent medical examination with Dr. Joel Gedan. Dr. Gedan found that the employee=s injury was Anot likely any more than a soft tissue injury or shoulder strain@ and that Ait is difficult to explain the persistent left shoulder symptoms on the basis of any known injury claim.@ Dr. Gedan diagnosed chronic proximal left upper extremity atrophy and weakness possibly related to polyradiculopathy but no definite etiology established. He determined that the employee has an insidious slowly progressive process of atrophy affecting primarily the C5 and C6 nerve roots in the left upper extremity which is not related to the employee=s work injury or work activities, and concluded that the employee had left shoulder pain complaints with decreased painful range of motion of undetermined etiology. Dr. Gedan also opined that the employee was at maximum medical improvement (MMI) and had no restrictions related to the September 2004 work injury.
A hearing was held on January 30, 2006, before Compensation Judge Harold Schultz, II. The judge found that the employee had sustained a temporary injury on September 13, 2004, and that he had reached maximum medical improvement from that injury as of June 13, 2005. He also found that the employee had performed a diligent job search under the circumstances, and ordered temporary total disability benefits and medical expenses paid from the date of injury through 90 days post-MMI. The employee appeals the compensation judge=s admission of Dr. Gedan=s report and the judge=s finding that the employee=s work injury was temporary in nature. The employer and insurer cross-appeal the compensation judge=s award of temporary total disability while the employee was traveling outside of the country in 2005, while he was disabled due to a nonwork-related knee condition and surgeries, and during the 90 day post-MMI period. The employer and insurer also appeal the award of medical expenses as unrelated to his work injury and also any expenses during the 90 day post-MMI period.
Admissibility of Medical Report
The employee objected to the admission of Dr. Gedan=s report, arguing that the report was untimely under Minn. Stat. ' 176.155, subd. 1, which provides that an examination at the employer=s request Ashall be completed and the report of the examination shall be served on the employee and filed with the commissioner within 120 days of service of the claim petition.@ The statutory 120-day deadline for service of an independent medical examination (IME) report was February 23, 2005. On February 28, 2005, the employer and insurer notified the employee that an IME had been scheduled. On March 7, 2005, the employer and insurer moved for an extension, indicating that an IME had been scheduled for May 26, 2005. The employee objected on the basis that this scheduled exam date was outside of the 120-day deadline. An extension was granted by Compensation Judge Jane Ertl by order served and filed April 8, 2005, which indicated that the time for filing the report was extended to May 20, 2005. The employee attended the IME with Dr. Joel Gedan on May 26, 2005, and his report was served on June 13, 2005.
Minn. Stat. ' 176.155, subd. 1, allows for an extension to be granted by a compensation judge for good cause, including that Athe extension is necessary to gather additional information which was not included on the petition as required by section 176.291.@ The compensation judge has the discretion to determine whether an extension is appropriate. Newberg v. Walgreens, WC05-195 (W.C.C.A. October 5, 2005); see also Bey v. Oxford Properties, 481 N.W.2d 40, 46 W.C.D. 198 (Minn. 1991). When requesting the extension, the employer and insurer claimed that additional time was needed to compile the employee=s medical records, and indicated that an examination was scheduled for May 26, 2005. The employer and insurer argue that good cause was present for an extension. On the basis of the record before us, including the complexity of the employee=s medical condition and the need for related discovery, we conclude that Compensation Judge Ertl did not abuse her discretion by allowing an extension of time for conducting the requested examination.
The compensation judge=s order granting the extension indicated that the examination report should be filed by May 20, 2005. The employer and insurer assert that this was a typographical error since the motion for the extension indicated that the examination was scheduled for May 26, 2005, and we agree that this was most likely a typographical error. Although the employee objected to the motion for an extension of time, he attended the scheduled examination, and the issue of admissibility was not raised at the pretrial conference. There is no indication that the employee was prejudiced by the delay in the examination since the hearing was not held until January 30, 2006, before Compensation Judge Schultz. The compensation judge did not err by allowing Dr. Gedan=s report into evidence, and we affirm.
Nature of Injury
The employee also appeals the compensation judge=s finding that the employee=s injury was temporary in nature. The employee argues that he was able to work in his merchandiser position which required frequent lifting between 2001 and the time of the injury, and that since his 2004 injury he has been restricted from performing that job, so therefore the injury must be considered permanent. The employee relies upon Dr. Bateman=s opinion which concludes that the employee=s pre-existing chronic muscle paresis prevented him from recovering from his work injury, left shoulder strain and brachial plexus injury, and that the employee=s work injury was a substantial contributing factor in aggravating his pre-existing condition. The compensation judge noted that the employee had been tested for a brachial plexus injury but that tests of the brachial plexus were negative. The compensation judge specifically relied upon Dr. Gedan=s opinion that the employee has a decreased painful range of motion of undetermined etiology, not related to the employee=s work injury or work activities, that the employee=s injury was not likely any more than a soft tissue injury or shoulder strain, and that the employee had reached maximum medical improvement from his work injury. It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985), and the compensation judge found Dr. Gedan=s opinion to be more persuasive. Substantial evidence, including Dr. Gedan=s expert medical opinion, supports the compensation judge=s finding that the employee=s 2004 work injury was temporary in nature, and we affirm.
The employer and insurer argue that the employee=s medical treatment after the injury was related to his pre-existing condition, not his work injury, noting that the doctors focus on the atrophy of the arm and not the soft tissue or shoulder strain. Under Minn. Stat. ' 176.135, an employer is required to furnish any medical treatment which is reasonable and necessary to cure or relieve an employee from the effects of his work injury. "The employee bears the burden of proving that health provider services were reasonable and necessary." Wylie v. Dan's Plumbing & Heating, 47 W.C.D. 235, 238 (W.C.C.A. 1992) (citing Wright v. Kimro, Inc., 34 W.C.D. 702 (W.C.C.A. 1982)). The reasonableness and necessity of medical treatment under Minn. Stat. ' 176.135 is a question of fact for the compensation judge. See Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993).
The compensation judge found that the medical treatment to the left upper extremity and cervical spine after the injury was reasonable and necessary to cure and relieve the employee from the effects of the soft tissue injury/temporary strain that the employee incurred. The employee sustained a left shoulder injury, and was being treated for his left shoulder. The treatment included necessary diagnostic testing and examinations. Diagnostic treatment or evaluation to rule out alternative diagnoses for an employee=s symptoms may be compensable, even though the ultimate diagnosis is of a condition later determined to be non-work-related. Sether v. Wherley Motors, Inc., slip op. (W.C.C.A. Dec. 30, 1999) (and cases cited therein); Bracewell v. St. John=s Hosp., slip op. (W.C.C.A. Oct. 15, 1997); Klaven v. Northwest Medical Ctr., slip op. (W.C.C.A. Sept. 24, 1991). That the doctors consulted ultimately could not find a causal relationship between the employee=s work injury and his pre-existing condition does not render his medical treatment noncompensable. The compensation judge did not err by awarding the employee=s medical expenses while he was treated for his temporary injury.
Temporary Total Disability Benefits; Medical Expenses After May 26, 2005
The employer and insurer cross-appeal the compensation judge=s award of temporary total disability benefits during the four weeks while the employee was traveling outside the country, after he was disabled for separate, nonwork-related knee surgeries, and during the 90-day period following service of notice of MMI. An employee is not entitled to temporary total disability benefits through ninety days post-MMI if the employee has been released to work without any physical restrictions caused by the work injury. Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987); Minn. Stat. ' 176.101, subd. 1(h). The employee was injured in September 2004. The employee was examined by Dr. Gedan on May 26, 2005, when he concluded that the employee was at maximum medical improvement and had no restrictions related to the September 2004 work injury. Dr. Gedan=s report was served June 13, 2005. The compensation judge accepted Dr. Gedan=s opinion, but awarded temporary total disability benefits and medical expenses until the expiration of the 90-days period post-MMI service on June 13, 2005. Since Dr. Gedan determined that the employee was at maximum medical improvement for the work injury and had no physical restrictions related to the work injury on May 26, 2005, the employee is not entitled to temporary total disability benefits or medical expenses beyond that date. We reverse the award of temporary total disability benefits and medical expenses after May 26, 2005.
The employer and insurer also argue that the employee was not entitled to temporary total disability benefits while traveling outside of the country and while disabled due to an unrelated right knee condition. The employer and insurer do not specify the dates of the employee=s travel; his travel apparently took place in May or June of 2005, but the employee=s testimony did not clarify the dates. At oral argument, the employee acquiesced that no temporary total disability benefits were due during the period of time when the employee was traveling out of the country. As to the employee=s knee condition and related disablement, his right knee problems started in July 2005, and he underwent right knee surgeries in September 2005. Since that disablement took place after May 26, 2005, past the time when benefits have been terminated, we do not need to address that issue further.
 Minn. Stat. ' 176.155, subd. 1 reads in part:
Subdivision 1. Employer=s physician. The injured employee must submit to examination by the employer=s physician, if requested by the employer, and at reasonable times thereafter upon the employer=s request. . . . The examination shall be completed and the report of the examination shall be served on the employee and filed with the commissioner within 120 days of service of the claim petition.
No evidence relating to the examination or report shall be received or considered by the commissioner, a compensation judge, or the court of appeals in determining any issues unless the report has been served and filed as required by this section, unless a written extension has been granted by the commissioner or compensation judge. The commissioner or a compensation judge shall extend the time for completing the adverse examination and filing the report upon good cause shown. The extension must not be for the purpose of delay and the insurer must make a good faith effort to comply with this subdivision. Good cause shall include but is not limited to:
(1) that the extension is necessary because of the limited number of physicians or health care providers available with expertise in the particular injury or disease, or that the extension is necessary due to the complexity of the medical issues, or
(2) that the extension is necessary to gather additional information which was not included on the petition as required by section 176.291.
 See Minn. Stat. ' 176.155, subd. 1.
 The employee testified that he was in Sudan 27 or 28 days in 2005; he was back from Sudan by at least June 12, 2005, when he consulted Dr. Bangean Abdullah due to his suspicions that he had contracted malaria while in Sudan.