BRENDA L. MUNDY, Employee/Appellant, v. AMERICAN RED CROSS and HERITAGE CLAIM SERVS., INC., Employer-Insurer, and NORAN NEUROLOGICAL CLINIC, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 31, 2008
EVIDENCE - RES JUDICATA. Res judicata bars the employee=s claim that she has sufficient permanent partial disability from pre-existing hearing loss to meet the threshold set for permanent total disability in Minn Stat. ' 176.101, subd. 5, where the same claim was considered and rejected in 2005.
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Substantial evidence supports the compensation judge=s determination that the claimed medical expenses were for treatment that was not reasonable and necessary.
Determined by: Stofferahn, J., Pederson, J. and Rykken, J.
Compensation Judge: Janice M. Culnane
Attorneys: David C. Wulff, Law Office of David C. Wulff, Roseville, MN, for the Appellant. Kay Nord Hunt, Richard L. Plagens, and Brett P. Clark, Lommen, Abdo, Cole, King & Stageberg, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s determination that the employee failed to sustain her burden in establishing permanent partial disability sufficient to meet the threshold set forth in Minn. Stat. ' 176.101, subd. 5, and from the resultant denial of permanent total disability benefits. We affirm.
Brenda Mundy was employed by the American Red Cross on March 20, 1998, when she sustained a personal injury. The injury was admitted by the employer and insurer and workers= compensation benefits were paid.
In November 1999, the employer and insurer sought to discontinue benefits, alleging that the employee had recovered from the effects of her work injury. A hearing was held before Compensation Judge Jeanne Knight in January 2000. In her findings and order, the compensation judge denied the request to discontinue benefits, finding that the employee remained disabled as the result of her 1998 work injury. The compensation judge=s decision was appealed to this court and the compensation judge=s finding on the causal connection between the work injury and the employee=s disability was affirmed. This court also remanded the case to the compensation judge for a reconsideration of the issue of maximum medical improvement.
The remand was consolidated with a claim petition previously filed by the employee and was heard by Compensation Judge Knight in May 2002. In her decision, issued in July 2002, the compensation judge denied the employee=s claim for permanent partial disability for reflex sympathetic dystrophy which the employee alleged was a result of her work injury. The compensation judge also denied the employee=s claim for permanent total disability, finding that the employee did not have the permanent partial disability required for permanent total disability set forth in the statute. The compensation judge, however, found the employee to be totally disabled. There was no appeal of the compensation judge=s decision.
The employee filed another claim petition, which was heard by Compensation Judge Janice Culnane in March 2005. Issues for determination at the hearing included the extent of permanent partial disability, whether related to the work injury or otherwise, and whether the employee was permanently totally disabled under the statute. In her findings and order of May 9, 2005, the compensation judge determined that the employee had failed to meet her burden in establishing entitlement to work-related permanent partial disability. The compensation judge found the employee had ten percent disability for a pre-existing loss of teeth but denied claims for pre-existing disability of the cervical and lumbar spine and denied a claim for permanent partial disability for pre-existing hearing loss. The compensation judge concluded the employee did not have the permanent partial disability required to comply with Minn. Stat. ' 176.101, subd. 5, and denied the employee=s claim for permanent total disability benefits. The employee appealed. This court affirmed the compensation judge.
The employee filed a claim petition in June 2006, alleging entitlement to permanent total disability and certain medical expenses. The claim was heard by Compensation Judge Culnane on May 11, 2007. At the hearing, the employee claimed that she had 24 percent disability of the whole body due to hearing loss and that, as a result, she met the 17 percent permanent partial disability threshold set forth in the statute and was entitled to an award of permanent total disability benefits. The employer and insurer argued that the employee=s claim for a rating of permanent partial disability for hearing loss was barred by res judicata since the issue had previously been determined in the 2005 hearing.
In her findings and order, issued July 13, 2007, the compensation judge denied the employee=s claim. She decided that the employee had Afailed to sustain her burden in proving permanent partial disability attributable to a hearing loss.@ The compensation judge made no finding on the defense of res judicata. The compensation judge determined that the employee did not meet the threshold of 17 percent permanent partial disability and was not permanently totally disabled. The compensation judge also decided that the medical expenses claimed by the employee were not reasonable and necessary. The employee appeals.
Permanent Partial Disability for Hearing Loss
The employee argues the compensation judge erred in failing to find that the employee proved ratable permanent partial disability for hearing loss. She contends that the evidence submitted at the hearing satisfied the requirements of the applicable rule. The employer and insurer respond by stating that the employee=s claim for hearing loss was the same as the claim considered in 2005 and should be barred by res judicata and that, in any event, substantial evidence supports the compensation judge=s decision.
In the 2005 litigation, the employee claimed 22 percent permanent partial disability for hearing loss. The rating came from a report from Dr. Robert Jacoby, the employee=s treating neurologist, dated February 24, 2003. According to that report, Dr. Jacoby=s rating was based on a hearing exam done in March 2002 at Minnesota Otolaryngology. The hearing exam, however, and any medical records from that provider relating to hearing loss were not in evidence. Less than a month after his report, Dr. Jacoby saw the employee. She expressed concern about her hearing loss and the compensation judge interpreted Dr. Jacoby=s response, as set forth in his chart notes, as minimizing the importance of the audiology exam and indicating that what was important instead was actual functional loss. The compensation judge, in her 2005 decision, denied the employee=s claim for a rating of permanent partial disability for hearing loss.
In the 2007 litigation, the employee claimed a rating of 24 percent for hearing loss, based on an evaluation at Avada Audiology and Hearing Care on March 31, 2006. The exhibit introduced by the employee from that facility consisted of the results of a speech discrimination test, a hearing assessment completed by the employee, an audiogram, calculations of permanent partial disability using the audiogram and the formula in Minn. R. 5223.0340, subp. 5, and a letter from the administrator at Avada that set out her conclusions based on the audiogram. The employee also testified at the hearing in 2007 and stated that she believed her hearing had gotten worse since the hearing in 2005. She described a Adead@ ear on her left side and said that her right ear now required a hearing aid. Her testimony, however, was essentially the same as the information she had provided to Dr. Jacoby as reflected in his chart notes from March 2003. Further, Dr. Jacoby, in his deposition of April 24, 2007, testified that the opinions he set forth in his report of February 24, 2003, continued to be true. He also testified that he agreed with the conclusions reached by the Avada technician.
We consider, then, the application of res judicata to the employee=s claim in the present case. Res judicata bars litigation of an issue that was previously determined on the merits and that involves the same parties. Kaiser v. Northern States Power Co., 353 N.W.2d 899 (Minn. 1984). In issue at the hearing in 2005 was whether the employee had proven a ratable hearing loss sufficient to meet the threshold of permanent partial disability set out in Minn. Stat. ' 176.101, subd. 5. The employee had full opportunity to present evidence on the issue at that time but simply failed to provide evidence which the compensation judge would find persuasive. The issue at the hearing in 2007 was identical - - whether the employee had a hearing loss which could be rated under the rules so as to meet the threshold. While the percentage claimed at the 2007 hearing is slightly different than the percentage claimed in 2005, there is no evidence to indicate any change in the employee=s hearing from 2005 to 2007.
The employee=s response is that res judicata simply does not apply to this claim. According to the employee, the issue at the 2007 proceeding was permanent total disability. The employee argues that the question is whether she now has the permanent partial disability necessary to meet the threshold for permanent total disability and whether she now is permanently totally disabled. The employee has made no separate claim for permanent partial disability benefits and the question of sufficient permanent partial disability is an adjunct of a wage loss claim according to this argument. The employee correctly notes that this court has generally not allowed res judicata to bar a claim for wage loss benefits where the period for which benefits are claimed is different than the period for which benefits were denied. Wilson v. Scanlan Int=l, Inc., No. WC05-198 (W.C.C.A. December 9, 2005).
However, acceptance of the employee=s argument in this case would mean that even though she did not establish permanent partial disability for hearing loss in 2005 and did not establish permanent partial disability for hearing loss in 2007 before the compensation judge, she should be able to make exactly the same claim for permanent partial disability for hearing loss in a subsequent proceeding in an attempt to prove entitlement for a different period of permanent total disability. This type of serial litigation of an issue previously decided after a full consideration of the evidence is exactly what res judicata seeks to avoid. We conclude that res judicata bars the employee=s claim.
The compensation judge, however, did not apply res judicata to the present case but decided instead that the employee had failed to prove permanent partial disability for hearing loss which was ratable under the rules. We turn then to the question of whether substantial evidence supports the compensation judge=s determination on this point.
In her memorandum, the compensation judge noted that Dr. Jacoby=s opinion on permanent partial disability for hearing loss continued to be based, at least in part, on the 2002 records from Minnesota Otolaryngology, and that those records continued to be not in evidence and unavailable for review. The compensation judge also referred to the minimal nature of the information from Avada Audiology, which were provided with no explanation, and the lack of any treatment records which would be consistent with the audiogram in showing an actual functional loss.
Determination of permanent partial disability is a question of fact for the compensation judge. Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987); Ly v. Laidlaw, Inc., No. WC04-342 (W.C.C.A. July 14, 2005). We are unable to state, based on the record before us, that the compensation judge erred in her determination.
The employee requested payment of a bill for office visits with Dr. Jacoby on March 28, 2006, and February 1, 2007, and requested reimbursement of certain prescription expenses. The compensation judge denied the claims, finding that the expenses were Anot reasonable and necessary to cure and relieve the effects@ of the injury. The compensation judge cited to the lack of a treatment plan by Dr. Jacoby and noted that his treatment essentially consisted of providing pain medication when requested by the employee. The compensation judge also stated that some of the conditions for which the employee saw Dr. Jacoby were not related to the injury but were because of other symptoms.
The employee argues the compensation judge erred. She states that Dr. Jacoby=s continuation of pain medication to reduce her pain is, in fact, a treatment plan and, given the fact that her condition has continued for some time, this treatment is reasonable, especially considering that other treatment approaches were tried earlier without success.
The compensation judge was aware of the issues raised by the employee and based on the record before us, we are not able to state that the compensation judge erred as a matter of law.
The decision of the compensation judge is affirmed.