AHMED M. HASSAN, Employee/Appellant, v. SPECIALTY STAFF, INC., SELF-INSURED/MEADOWBROOK CLAIMS SERVS., Employer.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 13, 2007
TEMPORARY BENEFITS - SUBSTANTIAL EVIDENCE. Substantial evidence, including medical expert opinion, supports the compensation judge=s finding that the employee did not need work restrictions from and after November 12, 2005, and the judge=s denial of wage loss benefits after November 11, 2005.
PRACTICE & PROCEDURE - MATTERS AT ISSUE. The employee=s claim of entitlement to additional permanent partial disability benefits was not at issue before the compensation judge, and the judge properly concluded the dispute was a matter for future determination if necessary.
Determined by: Johnson, C.J., Pederson, J., and Stofferahn, J.
Compensation Judge: James F. Cannon
Attorneys: Ahmed M. Hassan, pro se, Appellant. John H. Guthmann and Trisha A. Vicario, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondent.
THOMAS L. JOHNSON, Judge
The pro se employee appeals from the compensation judge=s finding that the employee did not have work restrictions due to his work-related left ankle injury from and after November 12, 2005, and the judge=s denial of wage loss benefits after November 11, 2005.
Ahmed M. Hassan, the employee, sustained a work-related fracture of the left ankle on February 16, 2005, while working for Specialty Staff, Inc., the employer, then self-insured for workers= compensation coverage with claims administered by Meadowbrook Claim Services.
Dr. Paul J. Crowe, Northwest Orthopedic Surgeons, performed surgery on February 24, 2005, to repair the left ankle fracture. On March 7, 2005, Dr. Crowe placed the employee in a short-leg cast and released the employee to work two hours a day at a sitting job with no weight bearing. The employee did not return to work because he felt he was unable to work due to his injury. The employee returned to see Dr. Crowe on April 5, 2005, at which time the doctor removed the cast and provided the employee with a CAM walker. The doctor released the employee to work six hours a day in a primarily sitting job.
On April 5, 2005, the employee also saw Dr. Steven Vincent who noted some mild swelling in the employee=s left leg and ankle with a very limited range of motion. Dr. Vincent stated the employee was unable to work and removed him from work until at least April 30, 2005.
On April 25, 2005, Dr. Crowe took the employee off work and prescribed physical therapy to work on full weight bearing. On June 8, 2005, the employee saw Dr. Thomas Conner at Northwest Orthopedic Surgeons. The doctor noted the employee should have seen Dr. Crowe several weeks ago. Following x-rays and an examination, Dr. Conner diagnosed status post left ankle fracture and continued pain out of proportion to clinical findings and history.
The employee requested a second orthopedic opinion and was seen by Dr. Michael J. Nemanich on June 22, 2005. On examination, the doctor noted mild swelling of the left foot and ankle with a good range of ankle motion. Dr. Nemanich stated the employee=s fracture was healed and he should be able to bear weight as tolerated. The doctor encouraged the employee to wean off his crutches and out of his cast boot and ordered physical therapy. Dr. Nemanich restricted the employee to sedentary work for six weeks.
The employee returned to see Dr. Crowe on June 13, 2005, complaining of severe pain in his left leg together with pain in his knee, hip and low back. The employee reported he had not gone to physical therapy because the insurer would not pay for it. In his office note, Dr. Crowe stated:
PLAN: I went over things with him. After I explained my feelings on his situation to him he states that he is severely unhappy with my explanation and considers them inaccurate. I asked him what he would like me to do or what else I could do for him, and he has no idea what he wants, but is quite clear that he feels that he is unable to return to work in any capacity at this point and is unable to move forward with therapy and he needs to continue the present regime as is on an indefinite basis. I am going to try to set him up in therapy again twice a week for four weeks. No pain medicines were given today. I don=t consider that there is any obvious solution to his problem. Perhaps physical therapy will help some, but I am not optimistic for it.
(Pet. Ex. A.)
Dr. Mark Friedland examined the employee on July 26, 2005, at the request of the self-insured employer. The doctor obtained a history from the employee through an interpreter, reviewed medical records, and performed a physical examination. Dr. Friedland diagnosed a healed left ankle, Weber C distal fibular fracture, and syndesmotic repair with excellent alignment, complaints of left knee pain without corroborating physical findings, complaints of left hip pain in excess of objective findings, and marked functional overlay and/or malingering. The doctor stated there was Aabsolutely no objective basis for the patient=s complaints of ongoing severe left foot and ankle pain. It is also of note that Mr. Hassan has been completely non-compliant with the care and treatment recommended by Dr. Crowe.@ (Resp. Ex. 2.) Dr. Friedland opined the employee had reached maximum medical improvement (MMI) and was not in need of any further medical care or treatment. The doctor assigned a two percent whole body disability secondary to the left ankle fracture but opined the employee required no restrictions with respect to his work or recreational activities because of the excellent healing of his fracture.
The employee returned to see Dr. Crowe on August 22, 2005, and stated he did not feel he was ready to return to work because his foot swelled when he put it down. Dr. Crowe and the employee=s qualified rehabilitation consultant (QRC) decided there was nothing they could do to get the employee back to work, and again prescribed physical therapy. On September 19, 2005, Dr. Crowe noted the employee had made minimal, if any, progress. In October 2005, Dr. Crowe stated the employee had gone through work hardening and was generally doing fairly well. The doctor released the employee to work four hours a day, subject to restrictions. In November 2005, Dr. Crowe increased the work day to five hours. In December 2005, Dr. Crowe stated he was unable to explain why the employee was doing so poorly and changed his restrictions to a four-hour work day.
By report dated January 18, 2006, Dr. Crowe stated:
I think, at this point, it is medically certain that Ahmed has sustained a permanent partial disability and will not make complete recovery. He has also sustained physical restrictions. I am not sure what they are going to be ultimately. At this point he is only allowed sit down work. I think his ability to work on his feet should be fairly good. There are a number of high performance people who have had this injury who have returned to full function. He is not showing any signs that he will be able to do that, but I think that is it impossible to quantitate the exact physical restrictions he may be facing in the future. I think there will be permanent restrictions, however.
(Pet. Ex. I.)
The self-insured employer filed a Notice of Intention to Discontinue Benefits (NOID) in August 2005, based upon the medical report of Dr. Friedland. The discontinuance was granted at an administrative conference on September 28, 2005. Thereafter, the employee filed an Objection to Discontinuance and a Rehabilitation Request that were consolidated for hearing. At the hearing, the employee claimed entitlement to temporary total disability benefits from August 26, 2005, and rehabilitation services. Following the hearing, the compensation judge found the employee reached maximum medical improvement on July 26, 2005. The compensation judge found the employee completed physical therapy on November 11, 2005, and was not in need of work restrictions at any time thereafter. The compensation judge awarded temporary total disability benefits from August 26 to November 11, 2005, but denied temporary total disability and rehabilitation benefits thereafter. The pro se employee appeals.
1. Wage Loss Benefits
The employee commenced physical therapy on July 18 and ended on November 11, 2005. (T. at 146.) The compensation judge concluded that, as of November 11, the employee no longer had work restrictions secondary to his personal injury. Accordingly, the compensation judge denied continuing wage loss benefits after November 11, 2005. The employee appeals this decision.
An employee who is able to return to work without restrictions is not entitled to wage loss benefits. Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987). Similarly, an employee who can engage in unrestricted work activities is not a qualified employee entitled to rehabilitation services. Minn. R. 5220.0100, subp. 22. Accordingly, the issue is whether substantial evidence supports the compensation judge=s decision that the employee was not in need of work restrictions after November 11, 2005.
Certainly, there is evidence which would support a result contrary to the conclusion reached by the compensation judge. The issue for this court, however, is not whether the evidence would support a contrary result but whether substantial evidence supports the decision reached by the compensation judge. It is the role of this court to determine whether the 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. 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).
In June 2005, Dr. Nemanich concluded the employee=s fibular fracture was healed. That same month, Dr. Conner noted the employee=s left ankle pain was out of proportion to his clinical findings and history. In July 2005, Dr. Friedland concluded the employee=s fracture had healed with excellent alignment, opined the employee had reached maximum medical improvement, and stated the employee could return to work without restrictions. These medical reports support the compensation judge=s decision. There is evidence to the contrary, including the testimony of the employee and the January 18, 2006, report of Dr. Crowe. The compensation judge, however, considered and ultimately rejected Dr. Crowe=s opinions, noting that between June 13 and December 19, 2005, Dr. Crowe=s records contain no objective clinical findings to support the employee=s subjective complaints. Where there is a conflict in medical testimony, it is the responsibility of the compensation judge to resolve that dispute. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Since the compensation judge=s decision is supported by substantial evidence, it must be affirmed.
2. Permanent Partial Disability Benefits
Dr. Friedland provided a two percent permanent partial disability rating, and this was paid to the employee by the employer. In his January 2006 report, Dr. Crowe stated:
His permanent partial disability rating would be 4% under 5223.0520, Subp. 3D(2), bimalleolar ankle fracture, for 4%. It is not technically a bimalleolar fracture because there is only a lateral malleolar fracture, but with the deltoid ligament injury, I think it makes it a bimalleolar equivalent injury, so I would rate it at 4% instead of the 2% he would get under subsection (1).
(Pet. Ex. I.)
On appeal, the employee contends the compensation judge failed to consider his claim for the additional two percent permanent disability. We disagree.
At the outset of the hearing, the compensation judge outlined the issues before the court:
The Court would note that as far as issues, the Court has determined the issue primarily is whether or not the employee still has ongoing work restrictions due to the admitted work-related injury of February 16, 2005, and if the employee is entitled therefore to temporary total disability benefits from August 26, 2005, to the present and continuing.
There=s also the issue of the employee=s entitlement to rehabilitation benefits or not, given the Rehabilitation Request that was filed. So we=re here on a consolidated Objection to Discontinuance filed by the employee, which was served on October 3rd, 2005, and also the employer and insurer=s Rehabilitation Request. So those are the issues.
(T. at 8.)
During the hearing, the employee=s counsel offered into evidence Petitioner=s Exhibit I, Dr. Crowe=s January 18, 2006, medical report. The compensation judge admitted the exhibit over the objection of the employer=s counsel but stated:
The Court also pointed out that although Dr. Crowe=s report does indicate for the first time some specific opinions regarding permanent partial disability, permanency will not be a part of this hearing, so that that=s the subject of a future dispute if necessary.
(T. at 86.)
Clearly, the employee=s entitlement to an additional two percent permanent disability was not an issue presented to the compensation judge for determination at this hearing. The employee may file another claim petition at any time for the claimed additional benefits.