JULIE A. ALSAKER MCCOY, Employee/Appellant, v. HENNEPIN HOME HEALTH CARE, and AMERICAN COMP. INS. CO./RTW, INC., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 23, 2007
MEDICAL TREATMENT & EXPENSE - CHANGE OF PHYSICIAN. Where the employee did not return to her treating surgeon following carpal tunnel surgery in 2003 and had no ongoing relationship with a medical provider, she was entitled to select a primary health care provider. The compensation judge=s denial of the employee=s request for a new treating physician must, accordingly, be reversed.
REHABILITATION - ELIGIBILITY. Substantial evidence supports the compensation judge=s finding that the employee does not have work restrictions and is not a qualified employee entitled to rehabilitation benefits.
Affirmed in part and reversed in part.
Determined by: Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Catherine A. Dallner
Attorneys: Gary L. Manka, Katz, Manka, Teplinsky, Due & Sobol, Minneapolis, MN, for the Appellant. David J. Klaiman and Michael C. Gregerson, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge=s denial of a request to change treating physicians and the judge=s denial of rehabilitation benefits. We affirm in part and reverse in part.
Julie A. Alsaker McCoy, the employee, began working for Hennepin Home Health Care, the employer, in 1990. The last twelve years of her employment were spent as a personal care attendant for a quadriplegic man. On May 2, 2003, the employee sustained a Gillette-type personal injury in the nature of bilateral carpal tunnel syndrome arising out of and in the course of her employment. The employer and its insurer initially denied liability for the employee=s personal injury.
In May 2003, the employee saw Dr. Christopher J. Widstrom, an orthopedic surgeon with St. Cloud Orthopedic Associates, complaining of pain and numbness in her right hand. Dr. Widstrom diagnosed carpal tunnel syndrome and performed a right carpal tunnel release in June 2003. Two weeks later, the doctor performed a left carpal tunnel release. On July 3, 2003, the employee was seen by Wendy Arnold, a physician assistant at St. Cloud Orthopedics. Ms. Arnold examined the employee=s left and right hands and noted tenderness along the incision sites. The employee was advised to continue working on scar massaging and to continue her rehabilitation exercises. Ms. Arnold stated that,
Her work note states that she will be out of work for a total of four weeks from her first surgery. Therefore, we changed her work note to state that she will return to work on July 26, 2003. That will extend her for two more weeks. I indicated that if she needed any other changes to call and let us know. She is scheduled p.r.n.
(Pet. Ex. D.) The employee received no further treatment from St. Cloud Orthopedic Associates for her personal injury.
The employee returned to work for the employer following her surgeries for several weeks. When the man the employee had been caring for died, the employer had no further work available for the employee. In September 2004, the employee married and moved from St. Cloud to Federal Dam, Minnesota.
In October 2005, Dr. Robert Wengler examined the employee on referral from her attorney. The employee told Dr. Wengler she obtained significant relief from the carpal tunnel surgeries but still had occasional pain into the middle three fingers of both hands which the doctor concluded was indicative of residual median nerve pathology. On examination, the doctor noted atrophy of the abductor pollicis previs muscle indicating permanent damage to the median nerve. Dr. Wengler opined the employee=s work activities for the employer were a substantial contributing cause of the employee=s bilateral carpal tunnel syndrome. The doctor stated the employee should not return to the types of work activities that brought on her problems and should avoid repetitive, stressful activities involving the use of her hands. The doctor rated a 3% whole body disability for each arm.
Dr. Robert Brown, an orthopedic surgeon, examined the employee in November 2005 at the request of the employer and insurer. The doctor diagnosed bilateral carpal tunnel syndrome resulting from the employee=s chronic, repetitive work activities with the employer. Dr. Brown opined the employee would have required restrictions through July 26, 2003, but thereafter would have been able to work without restrictions. Dr. Brown opined the employee sustained no permanent partial disability as a result of her work injury.
The employee filed a request for rehabilitation benefits, a request to change treating physicians to Dr. Wengler, and sought reimbursement of medical mileage for her consultation with Dr. Wengler. The matters were consolidated for hearing. By the time of the hearing, the employer and insurer had admitted liability for the employee=s personal injury. In a findings and order, the compensation judge found the employee was not permanently precluded or likely to be permanently precluded from engaging in her occupation of a personal care attendant due to the effects of her work injury. Accordingly, the compensation judge denied the employee=s request for rehabilitation benefits. The compensation judge further found the employee was not entitled to change treating physicians from Dr. Widstrom to Dr. Wengler. Finally, the compensation judge denied the employee=s request for reimbursement of mileage for attending the evaluation with Dr. Wengler. The employee appeals.
1. Change of Physicians
The compensation judge found Dr. Wengler=s office is more than 200 miles from the employee=s home in Federal Dam, Minnesota. The judge further found the employee did not investigate the names, locations, or professional qualifications of any orthopedist in any of the cities closer to Federal Dam, such as Brainerd, Walker, Bemidji, Grand Rapids, Duluth, Hibbing, Aitkin or Little Falls. Accordingly, the judge concluded the employee=s request to change physicians from Dr. Widstrom to Dr. Wengler was not in the best interests of the employee and/or the employer and insurer.
Minn. R. 5221.0430, subp. 4, provides:
Subp. 4. Change of primary provider not approved. After the first 60 days following initiation of medical treatment for the injury, or after the employee has exercised the employee=s right to change doctors once, the department, a certified managed care organization, or a compensation judge shall not approve a party=s request to change primary providers, where:
A. a significant reason underlying the request is an attempt to block reasonable treatment or to avoid acting on the provider=s opinion concerning the employee=s ability to return to work.
B. the change is to develop litigation strategy rather than to pursue appropriate diagnosis and treatment;
C. the provider lacks the expertise to treat the employee for the injury;
D. the travel distance to obtain treatment is an unnecessary expense and the same care is available at a more reasonable location;
E. at the time of the employee=s request, no further treatment is needed; or
F. for another reason, the request is not in the best interest of the employee and the employer.
The employee argues the compensation judge erroneously focused almost entirely on Part D. of the rule, the distance the employee would need to travel to see Dr. Wengler. AThe factors of distance and the existence of other similar types of physicians are but two factors which may be used by a compensation judge in determining whether a change of physicians may be approved.@ Hernandez v. Heartland Foods, 53 W.C.D. 372, 377 (W.C.C.A. 1995). There is no evidence, the employee argues, that Parts A. B. C. or D. is applicable. The employee argues the compensation judge construed the rule too narrowly and erred in denying the request to change doctors.
Subp. 1 of Minn. R. 5221.0430, defines the primary health care provider as the Aprovider directing and coordinating medical care to the employee following the injury.@ That definition presumes an ongoing relationship with continuing medical care provided to the employee which is directed or coordinated by the health care provider. In this case, Dr. Widstrom examined the employee and then performed two surgeries: a right and left carpal tunnel release. The employee did not return to see Dr. Widstrom after he performed the surgeries. On July 3, 2003, a physician=s assistant examined the employee=s hands and stated the employee was scheduled prn. Apparently, the employee received no further treatment for her carpal tunnel syndrome until she saw Dr. Wengler in October 2005. Given the facts in this case, we cannot conclude Dr. Widstrom remained the employee=s treating physician for purposes of Minn. R. 5221.0430. After July 3, 2003, Dr. Widstrom did not direct or coordinate any medical care for the employee. Rather, the facts evidence the employee was released from treatment and thereafter had no primary health care provider. Since the employee had no primary health care provider, she was entitled to select one. Accordingly, the compensation judge=s denial of the employee=s request to select a new treating physician is reversed.
2. Rehabilitation Benefits
The compensation judge found Dr. Widstrom did not impose any written restrictions on the employee=s work activities. The employee contends this conclusion was erroneous because the employee testified Dr. Widstrom gave her restrictions verbally rather then in writing. The employee further contends the compensation judge placed too much emphasis on Dr. Widstrom and ignored the testimony of Dr. Wengler that the employee does have restrictions. The employee argues the compensation judge=s denial of rehabilitation benefits is erroneous and must be reversed.
We have carefully reviewed the records of St. Cloud Orthopedic Associates and cannot conclude Dr. Widstrom released the employee to return to work with restrictions. Following the second carpal tunnel release, Dr. Widstrom did not again see the employee. On July 3, 2003, the employee was seen by Wendy Arnold, a physician assistant, who stated the employee could return to work on July 26, 2003. There is no mention in Ms. Arnold=s note that she considered or discussed restrictions of any type. Clearly Dr. Brown believed the employee could return to work without restrictions after July 26, 2003. This evidence supports the compensation judge=s finding that the employee has no restrictions and is not a qualified employee entitled to rehabilitation benefits. The compensation judge=s decision must be affirmed.
3. Medical Mileage
The employee also appeals the compensation judge=s denial of her claim for mileage for her trip to Minneapolis to see Dr. Wengler. Since the employee did not brief this issue, the court will not address it. The court takes no position on whether the employee=s travel expenses to obtain treatment with Dr. Wengler are reasonable.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 A[P]ro re na=ta, according as circumstances may require.@ Dorland=s Illustrated Medical Dictionary 1457 (29th ed. 2000).
 Federal Dam is located in Cass County approximately 45 miles from Bemidji, Minnesota.
 Issues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be addressed by the court. Minn. R. 9800.0900, subp. 1.
 But see Dombai v. Gold >N Plump Poultry, Inc., 51 W.C.D. 506 (W.C.C.A. 1994).