CHARLES MCQUAY, Employee/Appellant, v. AMES CONSTRUCTION and ST. PAUL COS., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 8, 2006
File No. WC06-120
PERMANENT TOTAL DISABILITY - THRESHOLD; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBD. 5(2). Where the fifty-four-year-old pro se employee had not proven that he was subject to any permanent partial disability, the compensation judge properly concluded that he had no alternative other than to deny the employee=s claim for permanent total disability benefits pursuant to Minnesota Statutes ' 176.101, subdivision 5(2), and the judge=s additional finding that the employee was also able to work as a factual matter was moot.
Determined by Pederson, J., Stofferahn, J., and Wilson, J.
Compensation Judge: William R. Johnson
Attorneys: Charles McQuay, pro se Appellant. Steven A. Muenzer, John G. Ness & Associates, St. Paul, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The pro se employee appeals from the compensation judge=s denial of his claim for permanent total disability benefits. We affirm.
On November 28, 2000, Charles McQuay was injured in the course of his work as a construction carpenter/laborer for Ames Construction, when he slipped from some frozen forms that he was trying to pry apart, landing on his hands and knees and striking his face on a form. Mr. McQuay [the employee] was fifty-four years old on the date of his injury and was earning a weekly wage of $1,553.40. Ames Construction [the employer] and its insurer admitted liability for the injury, and the employee was treated immediately by Dr. William Isaksen at the Park Nicollet Airport Clinic. Neck x-rays taken on that same date were read to be normal, and the employee was released to return to work with a diagnosis of facial abrasions and a mild cervical strain. Three days later, the employee returned to the clinic with additional complaints of pain over his left ribs and discoloration and swelling in his right fifth toe. X-rays of the ribs and toe were read as negative, and the employee was again released to work, with prescriptions for Celebrex and Vicodin.
On January 12, 2001, the employee was seen by orthopedist Dr. Kurt Anderson, on referral from his family physician, Dr. Ramesh Chawla. Dr. Anderson reviewed the employee=s cervical spine x-rays, noted Asome very mild cervical spondylosis degenerative type disease,@ and recommended physical therapy. About a month later, on February 8, 2001, the employee returned to Dr. Anderson and reported little improvement from the therapy. He also reported pain in his neck that burned down into the mid-thoracic region of his back, together with some mild radicular symptoms. Dr Anderson recommended an EMG and a cervical CT scan and referred the employee to physical medicine specialist Dr. Paul Biewen. The CT scan, conducted on February 14, 2001, was read to reveal multilevel cervical disc bulging, with moderate to severe bilateral foraminal stenosis at C4-5 and C6-7.
On April 5, 2001, the employee returned to Dr. Anderson, reporting that he was doing somewhat better and wanted to go back to work. Dr. Anderson released the employee to work with restrictions, noting, however, that the employee=s condition on exam was unchanged and that he continued to have neck-related pain with some mild radicular symptoms. In follow-up on May 24, 2001, the employee reported to Dr. Anderson that he was having difficulty at work with shoulder and neck pain, and Dr. Anderson again restricted him from working, also prescribing additional medication. Dr. Biewen conducted an EMG study of the employee=s right upper extremity on June 13, 2001, and read it to reveal no evidence of cervical radiculopathy. The nerve conduction studies did show evidence of mild nerve entrapment at the right wrist, but these findings were not viewed to be clinically significant.
On July 17, 2001, the employee was examined at the request of the employer and insurer by orthopedist Dr. Mark Engasser. In his report on that date, Dr. Engasser diagnosed facial abrasions, a myoligamentous strain of the cervical spine, and multilevel cervical spondylosis. He did not believe that either the degenerative findings or the foraminal stenosis noted on the employee=s CT scan were related to the employee=s work injury. He felt that the employee had sustained only a temporary aggravation of his underlying condition and was capable now of working full-time with physical limitations. Dr. Engasser recommended an additional three-month course of rehabilitation for the employee, after which he would reach maximum medical improvement from his injury. He did not anticipate any permanent partial disability based on the work injury of November 28, 2000.
On November 6, 2001, the employee underwent a cervical spine MRI scan, which Dr. Biewen noted on November 28, 2001, as revealing a central disc herniation at the C6-7 level. Dr. Biewen diagnosed a cervical disc herniation at the C6-7 level with associated radicular symptoms, and he recommended a cervical epidural steroid injection and continued exercises. He concluded that the employee was capable of working with restrictions against lifting over twenty pounds and against repetitive flexion, extension, or rotation of his neck. When he returned to Dr. Biewen on January 2, 2002, the employee reported significant symptomatic improvement following his cervical epidural steroid injection on December 10, 2001. Dr. Biewen noted, however, that the employee was now complaining of pain in the upper thoracic region as well as the left rib area. He injected the employee=s symptomatic thoracic region and released him to return to work with restrictions against lifting more than fifty pounds. In a February 5, 2002, letter to the employee=s attorney at the time, Dr. Biewen expressed the opinion that the employee=s diagnosis of a C6-7 disc herniation with neck pain and cervical radiculitis was a direct result of his November 2000 work injury. He noted that the employee had initially benefitted from his cervical epidural steroid injection but had subsequently experienced a gradual increase in his pain symptoms. He recommended a second epidural steroid injection followed by a surgical consultation if the employee=s symptoms continued.
The employee underwent the second epidural steroid injection without lasting benefit and was referred to neurosurgeon Dr. Greg Dyste on February 20, 2002. Dr. Dyste reviewed the employee=s history and CT scan and scheduled a discogram to determine whether the employee=s pain was referable to the C6-7 disc space specifically or was due to a multilevel condition. In a follow-up report on March 27, 2002, Dr. Dyste noted that it had not been possible to perform discography safely at the C6-7 disc space but that the employee did report pain associated with discography at C3-4, C4-5, and C5-6. Because the employee had reported pain at at least three disc spaces, Dr. Dyste did not believe that surgery would be of any benefit to him, and he recommended continued nonsurgical management.
The employee was subsequently seen for a rehabilitation consultation by QRC John Busse on March 11, 2002. Mr. Busse found the employee eligible for rehabilitation services and arranged for a functional capacities evaluation [FCE] with physical therapist David Thoreson on April 29 and 30, 2002. Following the FCE, the employee was referred to job placement specialist Wayne Onken, who was selected because of his familiarity with the employee=s job market. About half a year later, on December 30, 2002, QRC Busse issued a final report, recommending that no further rehabilitation, placement, or QRC services be provided to the employee. Mr. Busse reported that his recommendation was based on the following factors: 1) the employee=s primary transferable work skill had been driving, and he could no longer perform that activity with his physical restrictions; 2) all of the employee=s work experience over the past thirty years had been in construction labor/carpentry/driving; 3) the employee had no education or training beyond high school; 4) the employee=s age precluded practical consideration of formal retraining options as an alternative; 5) the employee=s geographic location limited his range of potential employers; and 6) the employee had engaged in a vendor-assisted job search for six months without success.
On April 14, 2003, the employer sent a letter to the employee offering him a position within his restrictions at its Burnsville, Minnesota office. The travel distance from the employee=s home to the work site in Burnsville was 108 miles one way. The employee reported to work but noted an increase in his neck symptoms related to the two-hour drive to work. When he returned to see Dr. Chawla, his family physician, on April 22, 2003, the employee reported that while driving to work his neck had become very stiff and he had experienced pain radiating down to the shoulder. On that information, Dr. Chawla restricted the employee=s distance driving, noting that it was Avery dangerous for him to drive that far because of the danger of an accident to himself . . . and others as he cannot turn for the oncoming and merging traffic.@
On July 1, 2003, the employee was again examined on behalf of the employer and insurer by Dr. Engasser. The employee advised Dr. Engasser that he had not worked since May 24, 2001, and that since his last exam on July 17, 2001, he felt that his overall condition had worsened. In addition, he reported, he had developed left shoulder and arm pain. In a report following his examination, Dr. Engasser indicated that the opinions that he had expressed in 2001 remained unchanged. He concluded again that the employee=s work injury had been temporary and that the employee would have reached maximum medical improvement as of October 17, 2001. He stated that the mechanism of the injury to the employee=s neck was an indirect one and had not resulted in any permanent impairment. Dr. Engasser reviewed an analysis of the job offered by the employer in April 2003 and concluded that the employee would physically be able to handle the job. He indicated that he thought that job modification would be beneficial, based on the employee=s cervical degenerative disc disease, but that he did not relate the need for such modifications to the employee=s work injury. Nor did he believe, he stated, that the employee required any specific limitations with regard to driving based on his cervical or upper extremity condition. Dr. Engasser=s report was served on the employee and his attorney on August 1, 2003.
On August 5, 2003, the employee filed a claim petition alleging entitlement to permanent total disability benefits continuing from May 24, 2001, as a result of his work injury of November 28, 2000. In their answer to the employee=s claim petition, the employer and insurer denied that the employee was permanently and totally disabled. About two months later, on October 28, 2003, the employer and insurer served a Notice of Intention to Discontinue [NOID] the employee=s benefits on grounds that the employee was no longer entitled to temporary total disability benefits ninety days post service of Dr. Engasser=s maximum medical improvement opinion.
The employee remained off work following the employer and insurer=s NOID and underwent a second FCE with David Thoreson on April 12 and 13, 2004. In a letter to the employee=s QRC on May 21, 2004, Mr. Thoreson reported that the employee=s functional abilities matched the essential demands of the modified job offered by the employer in 2003. Mr. Thoreson noted, however, that there had been a significant decrease in the employee=s sitting tolerance since the FCE results in 2002. He stated that those results indicated that the employee would have difficulty traveling two hours to and from the work site in Burnsville.
About this time, the employee applied for social security disability benefits and was referred for a disability examination by Dr. D. M. Van Nostrand. In a report dated June 17, 2004, Dr. Van Nostrand diagnosed cervical pain syndrome with radiculopathy, multiple cervical degenerative disc disease, a history of lumbar pain syndrome and lumbar disc disease, and left rib pain. Referring to the employee=s cervical degenerative disc disease, Dr. Van Nostrand stated that the employee Ashould not be required to do any heavy lifting, anything over 10 pounds occasionally and he should not be required to kneel, climb, bend or lifting over his head.@
In May, June, and July of 2004, the employer and insurer conducted surveillance of the employee=s daily activities. The videotapes of this surveillance were shown to Dr. Engasser. In a supplementary report dated August 13, 2004, Dr. Engasser stated that the video surveillance confirmed his opinion that the employee=s work injury was temporary and that the employee did not require any physical restrictions.
On October 17, 2005, Dr. Chawla addressed a letter ATo Whom It May Concern@ on behalf of the employee. Dr. Chawla noted that, notwithstanding extensive physical therapy and work capacity evaluation, the employee was precluded from employment by his neck injury. He was of the opinion that the employee=s injuries were permanent and would not improve, regardless of such extensive physical therapy.
The employee=s claim for permanent total disability benefits came on for a hearing before a compensation judge on October 26, 2005. At the hearing, the judge explained to the employee, who was not represented by counsel, that the statute required an employee to be subject to a specified level of permanent partial disability in order for him to be eligible to make a claim for permanent total disability benefits. Because the employee=s medical evidence did not include the necessary threshold rating of permanent partial disability, the judge agreed to keep the record open for thirty days following the hearing, to allow the employee to obtain a medical report containing the necessary permanency rating. The case then proceeded on the sole issue of whether or not the employee had satisfied the additional case law requirements for permanent total disability. Evidence at trial included the testimony of the employee and of witnesses called by the employer and insurer, directed toward the issue of the employee=s activities and his ability to work.
After the hearing, the employee obtained a report from his chiropractor, Dr. Paul Hjort. In his report, dated November 4, 2005, Dr. Hjort opined that the employee had suffered a 10% whole-body impairment related to his cervical spine, pursuant to Minnesota Rules 5223.0370, subpart 3C(2). On November 6, 2005, the employee submitted to the judge both this report from Dr. Hjort and a report from Dr. Van Nostrand generally supportive of his claim for permanent total disability status but containing no rating of permanent partial disability. The record closed on December 5, 2005. In a Findings and Order issued January 31, 2006, the compensation judge concluded that the employee had not presented evidence of permanent partial disability sufficient to meet the threshold for permanent total disability as required by Minnesota Statutes ' 176.101, subdivision 5, and had also not satisfied the additional requirements established in case law. Accordingly, the judge denied the employee=s claim. The employee appeals.
Minnesota Statutes ' 176,101, subdivision 5(2)(b), as amended effective on October 1, 1995, provides that certain thresholds of permanent partial disability must be met before a permanent total disability claim may be asserted. That statute provides in part as follows:
Subd. 5. Definition. For purposes of subdivision 4, Apermanent total disability@ means only:
(1) the total and permanent loss of the sight of both eyes, the loss of both arms at the shoulder, the loss of both legs so close to the hips that no effective artificial members can be used, complete and permanent paralysis, total and permanent loss of mental faculties; or
(2) any other injury which totally and permanently incapacitates the employee from working at an occupation which brings the employee an income, provided that the employee must also meet the criteria of one of the following clauses:
(a) the employee has at least a 17 percent permanent partial disability rating of the whole body;
(b) the employee has a permanent partial disability rating of the whole body of at least 15 percent and the employee is at least 50 years old at the time of injury; or
(c) the employee has a permanent partial disability rating of the whole body of at least 13 percent and the employee is at least 55 years old at the time of the injury, and has not completed grade 12 or obtained a GED certificate.
Minn. Stat. ' 176,101, subd. 5(2)(b) (italics added).
The employee in the present case was fifty-four years old at the time of his injury, meaning that, under subdivision 5 (2)(b), a 15% whole body rating is a prerequisite to an award of permanent total disability. In Frankhauser v. Fabcon, Inc., this court held that an employee who has sufficient ratable permanent partial disability from any cause, whether work-related or not, may establish entitlement to benefits for permanent total disability. Frankhauser v. Fabcon, Inc., 57 W.C.D. 239 (W.C.C.A. 1997), summarily aff=d (Minn. Oct. 28, 1997). Here, the employee has not proven that he is subject to any permanency. Dr. Engasser was of the opinion that the employee=s injury was temporary and resulted in no permanent partial disability, and the only evidence submitted by the employee as to the statutory threshold was Dr. Hjort=s rating of 10%. Even had the judge made a finding that the employee was subject to a 10% permanent impairment, which he did not, such a rating would not meet the 15% threshold requirement of the statute. As the judge noted in his memorandum, Asince the employee has failed to reach the minimum threshold to receive PTD benefits, the [Court] is left with no alternative other than to deny that claim.@ In his decision, the compensation judge also addressed the employee=s ability to work as a factual matter, aside from the employee=s failure to meet the statutory permanency threshold. That issue, however, is moot, given the employee=s failure to meet the threshold, and, agreeing with the judge=s own characterization of his discussion of it as Asomewhat academic,@ we decline to address it. Accordingly, the judge=s denial of permanent total disability benefits is affirmed.
The employee has also raised in his brief an issue regarding the employer and insurer=s potential liability for outstanding medical bills. We note, however, that the only issue listed in the judge=s findings and order is the employee=s claim for permanent total disability benefits. A claim for medical expenses is not listed. From our review of the record, we note that there was some discussion regarding medical expenses at the outset of the hearing. The employee did not have copies of the disputed bills, and the judge left the record open for the submission of that evidence as well as evidence of the employee=s meeting the permanency threshold. The employee=s post-trial letter to the judge on November 6, 2005, however, in which he forwarded the reports from Dr. Van Nostrand and Dr. Hjort, made no mention of any claim for payment of medical expenses. In light of the record before us, we can only conclude that the issue of the employee=s medical benefits was never clearly at issue or litigated before the judge. An issue raised for the first time in a party=s appellant brief is beyond the scope of the court=s review on appeal. Hartman v. 3M Co., slip op. (W.C.C.A. Sept. 8, 1992).
 In February 2002, the parties had entered into a compromise settlement of the employee=s claims through February 5, 2002. Thereafter, the employer and insurer had paid 90.6 weeks of temporary total disability benefits for the period of February 6, 2002, through October 29, 2003. No permanent partial disability benefits had been paid as a result of the employee=s injury.
 Subdivision 4 establishes the rate payable for permanent total disability benefits, as opposed to any necessary proof required, and refers to offsets available for government disability benefits, old age and survivor insurance benefits, and the retirement presumption. Subdivision 4 is not directly at issue in this proceeding.