WILLIAM BAKER, Employee/Cross-Appellant, v. QUADION CORP. and LIBERTY MUT. INS. CO., Employer-Insurer/Appellants, and NORAN NEUROLOGICAL CLINIC, Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 22, 2009
EMPLOYMENT RELATIONSHIP - CONSTRUCTIVE DISCHARGE; SETTLEMENTS - INTERPRETATION. Where the employer and insurer’s principal reason for not returning the employee to his job was their conclusion that his non work-related edema condition rendered him physically incapable of performing that job, where that conclusion was not ultimately supported by any expert medical opinion and there existed ample medical evidence in support of the employee’s return to work, the employee’s decision to seek work elsewhere was not a voluntary termination of his employment, such as would have precluded his receipt of medical benefits under the stipulation, but rather the consequence of a constructive discharge by the employer such as entitled the employee to medical benefits under the stipulation.
EMPLOYMENT RELATIONSHIP - CONSTRUCTIVE DISCHARGE; SETTLEMENTS - INTERPRETATION. Where the employer had constructively terminated the employee by interminably delaying his return to work without any medical basis for doing so, the compensation judge erred in finding that “[t]he employee has not lost or resigned his employment with the employer causally related to the work injury” for purposes of applying the parties’ stipulation for settlement.
Affirmed in part and reversed in part.
Determined by: Pederson, J., Johnson, C. J., and Rykken, J.
Compensation Judge: Carol A. Eckersen
Attorneys: Michael J. Patera, MacMillan, Wallace, Athanases & Patera, Minneapolis, MN, for the Cross-Appellant. Randee S. Held, Bakken, Robinson & Grove, Golden Valley MN, for the Appellants.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge's award of medical benefits. The employee cross-appeals from the judge’s conclusion that “[t]he employee has not lost or resigned his employment with the employer causally related to the work injury,” as it relates to the parties’ stipulation for settlement. We affirm the judge’s award of medical benefits, and we reverse the judge’s conclusion that the employee has not lost his job with the employer due to his work injury.
On August 15, 1997, William Baker [the employee] sustained a Gillette-type injury to his cervical spine in the nature of a disc herniation, while working as a machinist in the course of his employment with Quadion Corp. [the employer]. The employee was thirty-seven years old at the time and was earning a weekly wage of $560.00. On September 25, 1997, the employee underwent decompression and fusion surgery at C5-6 of his spine, performed by neurosurgeon Dr. Daniel Ahlberg. According to a letter from Dr. Ahlberg to the employee’s attorney dated November 13, 1998, the employee “did exceedingly well” post-operatively and returned to working full time in early December 1997. The employee’s job was eventually that of a “gauge crib” attendant. He worked at this job for several years, with restrictions against moving his neck, against lifting over ten pounds, and against lifting more than five pounds over his shoulder, with the requirement also that he change positions every hour or two.
On March 17, 1999, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Nolan Segal. In his report on March 24, 1999, Dr. Segal concluded that, while the employee’s decompression and fusion surgery in the fall of 1997 was certainly reasonable and necessary, the disc herniation that was repaired by that procedure was not causally related to the employee’s work activities. Based on the employee’s fusion surgery, Dr. Segal recommended that the employee avoid flexing and rotating of his cervical spine, that he avoid repetitive overhead use of his upper extremities, and that he avoid lifting over forty pounds. Dr. Segal further indicated that the employee would certainly benefit from weight loss and that he should do some home flexibility and strengthening exercises for his neck and upper extremities. Finally, Dr. Segal concluded that the employee had reached maximum medical improvement regarding his neck condition, which the doctor rated as a 2.5% whole body permanent partial disability, unrelated, however, to his work for the employer.
On June 4, 1999, the employee returned for further evaluation by Dr. Ahlberg. Upon examination of the employee and review of his most recent imaging studies, Dr. Ahlberg diagnosed mild chronic neck and right arm pain and confirmed that the employee “has done very well and made a good recovery from surgical therapy.” He concluded that the employee “can continue performing full-time work activities, performing his usual work activities without specific restrictions.”
In July of 2000, the parties filed a stipulation for settlement, on which an award was issued July 20, 2000. Under terms of the stipulation, the parties agreed, in section IV, paragraph A, of the stipulation, that the employer and insurer would pay and the employee would accept $16,000.00 in full, final, and complete settlement of all claims for benefits proceeding from the employee’s work injury of August 15, 1997,
including, but not limited to, claims for temporary total disability, temporary partial disability, permanent partial disability, permanent total disability, rehabilitation, retraining, economic recovery compensation, impairment compensation, past and future medical expenses, supplemental benefits, monitoring period benefits, benefits pursuant to Minn. Stat. § 176.101, subd. 3j, nursing services, interest and penalties.
This agreement was made subject to section IV, paragraph B, of the stipulation, which provides in part as follows:
1. That in the event Employee resigns or loses his job with [the employer] because of his cervical spine disability, he will be entitled to claims for temporary partial disability benefits, permanent total disability benefits and future medical benefits without first vacating this Stipulation for Settlement.
2. That Employee will remain working on the first shift as long as a position within his restrictions is available with Employer. In the event that the first shift no longer has work within Employee’s restrictions, he will be reassigned to another shift with work available within his restrictions . . . .
3. That Employee may not make any claims for workers’ compensation benefits in the event he voluntarily terminates his employment with Employer for reasons unrelated to his cervical spine disability, or in the event his employment with the Employer is terminated as a result of gross misconduct.
(Bold face added.)
Subsequent to returning to work at the gauge crib attendant job, the employee had sometimes experienced occasional flare-ups of neck pain, for which he would occasionally miss a day of work to seek treatment. On December 9, 2002, a physician’s assistant to Dr. Theodore VanErp, one of the employee’s treating physicians, recommended work restrictions requiring that the employee not lift more than thirty pounds three times an hour, that he limit repetitive motion with his right arm, and that he keep his head in a neutral position at all times.
In January of 2006, about three years later, after a sudden weight gain of one hundred fifty pounds over the course of only a week and a half, the employee consulted Dr. Edwin Gould, who diagnosed edema and commenced treatment for a variety of non work-related problems. The employee subsequently began to lose more time from work, and at the end of January 2006 he contacted the employer and requested a leave of absence to better address his treatment for edema and sleep apnea. He was evidently granted the leave, went off from his job as a gauge crib attendant on January 31, 2006, and thereafter received short-term disability benefits.
On April 20, 2006, by which date the employee had lost twenty or thirty pounds since his sudden increase of one hundred fifty pounds early in the year, the employee was examined by occupational medicine specialist Dr. Gerald Peterson. Noting the employee’s history of a one-hundred-fifty-pound weight gain “over a three month period of time” and his obstructive sleep apnea, Dr. Peterson diagnosed diastolic heart failure and indefinitely restricted the employee from working. About a month later, on May 23, 2006, Dr. Gould released the employee to return to work again on May 30, 2006, restricted for one month from standing for more than two hours a day and from lifting more than twenty pounds, recommending also that the employee be allowed to shift positions frequently. These restrictions were similar to but less restrictive than those issued by Dr. VanErp’s physician’s assistant in December of 2002, with regard to the employee’s work injury, and they also were substantially related to the employee’s work injury and unrelated to his water weight gain. On June 27, 2006, at the request of the employer, the employee underwent a “Fitness for Duty Evaluation” by Dr. Thomas Jetzer, a partner of Dr. Peterson. Dr. Jetzer diagnosed obesity, left-side heart failure with significant leg edema, shortness of breath, lethargy, a history of sleep apnea, back and knee pain related to body weight, and status post-carpal tunnel syndrome in remission. On these diagnoses, it was Dr. Jetzer’s opinion that the employee should not work, that, “[a]lthough his doctor has given him a release I think his edema and heart failure seems to be inadequately dealt with at this point in time. While the maximum he can do is sedentary work, that may in and of itself tire him out.” Dr. Jetzer encouraged the employee to seek a second opinion.
On July 14, 2006, the employee began treating with regard to his non work-related condition with Dr. Eric Simon, who diagnosed edema of “unclear etiology,” prescribed a change in medication, and referred the employee for a vascular surgery consultation. The employee saw Dr. Simon again in follow-up on July 27, 2006, on which date Dr. Simon continued to diagnose edema, together with sleep apnea. The doctor restricted the employee from working “until cleared by [the M]ayo [Clinic],” where the employee was scheduled to be seen on September 14, 2006. The employee was examined by Dr. Simon again with regard to his edema condition on August 15, 2006, and, noting in part that the employee had “minimal physical activity at work,” Dr. Simon concluded that it was “OK [for the employee] to return to work without restrictions.”
When the employee was examined again by Dr. Jetzer on August 21, 2006, Dr. Jetzer noted that the employee
appears to be slightly improved since the last time I saw him. He has less redness in the legs. He still has gross pitting edema and is grossly overweight. He moves better and his chest sounds are better. There are no bruits. The [employee] does not appear to be short of breath at this point in time.
On those findings, Dr. Jetzer released the employee to return to full-time work, restricted for two months, through October 22, 2006, from lifting over ten pounds, from pushing or pulling over twenty-five pounds, from doing any bending, twisting, turning, kneeling, overhead reaching, or climbing, and from standing or walking over three hours a day, advising also that he be allowed to rotate his activities and positions every one to three hours.
On August 24, 2006, the employee’s attorney wrote to the insurer, informing it that the employee had now been released to return to work with only those restrictions related to his work injury and inquiring as to when the employee would be returned to work. The letter also advised the insurer that the employee would be claiming workers’ compensation benefits should he not be returned to work.
The employee was examined at the Mayo Clinic on September 14 and 15, 2006, by specialists in internal medicine, lymphedema, and hypertension. The examining physicians diagnosed obesity, lymphedema, and hypertension, prescribed medications, and recommended diet and exercise modifications. Also on September 15, 2006, the employee’s attorney wrote to the employer, enclosing his August 24, 2006, letter to the insurer, requesting information by October 1, 2006, as to the employee’s return to work with the employer. About this same time, the employee applied for unemployment compensation benefits, which he began to receive in October of 2006. By November 1, 2006, he had reduced his weight by sixty-six pounds. On that date, Mayo clinic endocrinologist, Dr. Frank Kennedy, noted that the employee “does seem motivated in continuing to make lifestyle changes and trying to get his weight back down to reasonable levels. He seems focused on dietary changes and increasing activity as would be appropriate.” The employee last treated at the Mayo, with internal medicine specialist Dr. John Graner, on December 7, 2006, by which date his diagnosis had come to include Type-2 diabetes and sleep apnea, and he has apparently had no further treatment for his weight-related condition since that time.
Near the end of 2006, the employee attempted to withdraw money from his retirement account, and on December 4, 2006, Fred Froelich, the employer’s human resources manager until February 29, 2008, wrote to him to inform him that he was not allowed to withdraw money from the account because he was still an active employee on approved medical leave and did not meet any condition specified by the fund for withdrawal while still an active employee. The employee’s attorney responded by letter two days later, requesting further explanation in light of the employer’s being unable or unwilling to provide work for the employee. The employee’s attorney wrote again to the employer on December 14, 2006, explaining that the employee had been released from his medical leave for his edema by his treating doctor and that he was no longer receiving the short-term disability benefits on which he had been living. Mr. Froelich replied on December 19, 2006, attaching Dr. Jetzer’s August 21, 2006, restrictions and asserting that the employee’s treating physician’s release did not address the employee’s ability to work with regard to his edema condition, although Dr. Simon had never been treating the employee for anything other than his edema condition. Mr. Froelich indicated that, “even though [Dr. Jetzer] stated that [the employee] could return to work, due to the substantial physical restrictions, it was determined that [the employee] could not perform his regular job duties and responsibilities and could not be allowed to return to work.”
On January 12, 2007, the employee was examined again by Dr. Simon, who noted that the employee had slowly progressing neck and arm pain with occasional hand tingling and numbness. On those findings, Dr. Simon updated the employee’s work restrictions to require a change of positions two or three times each hour and to preclude the following: any crawling or climbing or more than occasional bending, stooping, squatting, crouching, kneeling, balancing, pushing, pulling or lifting over five pounds above shoulder level; any lifting or carrying of more than ten pounds occasionally; any firm grasping or fine manipulating with the hands; or any frequent flexing or rotating of the head and neck. Based on Dr. Simon’s opinion, the employee’s attorney replied to Mr. Froelich on January 25, 2007, reiterating that the employee’s only restrictions were due to his cervical spine condition, which the employee had worked with for years within his restrictions. Mr. Froelich replied the follow day to the employee, indicating that the employer was in receipt of Dr. Simon’s Return to Work form but asserting now that Dr. Simon’s opinion was without foundation because “Dr. Simon is not the treating physician for your work injury.” Mr. Froelich reasserted also that, “according to our knowledge, you are on approved medical leave for medical conditions other than those listed on the . . . return to work form.” Mr. Froelich indicated that the employer was continuing to rely on Dr. Jetzer’s report, that, “due to the substantial physical restrictions, it was determined that you could not perform your regular job duties,” and that “[p]rovid[ed] we receive a Return to Work form that addresses the reasons(s) you are on an approved medical leave we then can review and determine your return to work.” In April of 2007, the employee’s entitlement to unemployment compensation expired, and he ceased receiving payments of such compensation.
In the summer of 2007, the employee experienced a flare-up of his neck pain, with pain radiating into both upper extremities, for which, on June 15, 2007, he commenced a series of eleven treatments with chiropractor Dr. John Belde. On July 18, 2007, Dr. Belde wrote to the employee’s attorney, reporting his opinion that, “[w]ith regular care, [the employee] can be much more productive and common activities of daily living should not cause significant flare up to his condition.” The employee’s treatments with Dr. Belde concluded on July 27, 2007, having brought the employee short-term relief.
On August 23, 2007, the employee was examined again for the employer and insurer by Dr. Segal. In his report on November 6, 2007, after taking a history of the employee, examining the employee physically, and conducting an extensive review of his medical records, Dr. Segal opined as follows: (1) that the employee’s August 15, 1997, work-related neck injury was not a substantial contributing cause of his current condition, claimed disability, recent loss of work time, or recent need for medical treatment; (2) that the employee’s loss of work time and need for medical treatment were entirely due to significant non work-related medical conditions that had developed since September 23, 2006; (3) that, with regard to his work-related cervical spine condition, the employee had been capable ever since September 23, 2006, of sustained gainful employment with no restrictions over and above those outlined in 1999 with respect to his cervical spine condition; and (4) that the employee did not require any additional medical care or treatment relative to his cervical spine.
Since last working for the employer, in January of 2006, the employee has been provided no vocational rehabilitation assistance, but he has diligently sought work on his own from October 2006 through the date of the hearing, keeping logs of some of his job search. After finding and working at several different jobs that were not always within his restrictions, the employee found and continues to work at a full-time job as a calibration technician and inspector sixty-seven miles from his home, a job that apparently closely resembles the old gauge crib attendant job that the employee had with the employer, at which new job the employee has missed no work hours due to his cervical spine condition.
The matter came on for hearing on July 3, 2008. Issues at hearing included the following: (1) whether the parties’ stipulation for settlement permitted the employee’s claims for temporary partial disability benefits more than 450 weeks after the date of injury; (2) “[h]as the employee lost or resigned from employment with the employer causally related to the work injury in order to claim additional temporary partial disability benefits?”; (3) whether or not the employee has “lost or resigned from his employment with the employer causally related to the work injury in order to claim additional medical care and treatment”; and (4) various lesser included issues. Evidence introduced at hearing included the testimony of Sherrylynne Teslow, the successor to Mr. Froelich as human resources manager at the employer, who testified in part that the employee had never been terminated by the employer but continued on a leave of absence. By Findings and Order filed October 3, 2008, the compensation judge concluded in part, at Finding 13, that “[t]he employer has not terminated the employee nor offered a job within his restrictions through the date of hearing. The employee did not resign from his employment with [the employer].” The judge then went on to conclude also in part, at Finding 19, as follows:
Minnesota Statutes and the Stipulation for Settlement bars the employee’s claims for temporary partial disability more than 450 weeks after the date of injury. The employee has not lost or resigned his employment with the employer causally related to the work injury. The employee’s claims for medical care are not barred by the Stipulation. The work injury is a substantial contributing cause of the employee’s need for care. The care has been reasonable and necessary.
The employer and insurer appeal from the award of medical benefits, and the employee cross-appeals from the judge’s conclusion that “[t]he employee has not lost . . . his employment with the employer causally related to the work injury.”
STANDARD OF REVIEW
“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.” Krovchuk v. Koch Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).
1. The Appeal: Medical Benefits
At Finding 13 the compensation judge concluded in part that “[t]he employee did not resign from his employment with [the employer].” At Finding 19 the judge went on to conclude in part also that
[t]he employee has not lost or resigned his employment with the employer causally related to the work injury. The employee’s claims for medical care are not barred by the Stipulation. The work injury is a substantial contributing cause of the employee’s need for care. The care has been reasonable and necessary.
The employer and insurer have appealed from the judge’s award of medical benefits, contending that claims for medical expenses are barred by the parties’ stipulation for settlement. They argue that the stipulation expressly provides, under section IV, paragraph B1, that the employee is entitled to claim workers’ compensation benefits only “in the event the Employee resigns or loses his job with [the employer] because of his [work-related] cervical spine disability.” Further, they argue, section IV, paragraph B3, of the stipulation expressly precludes any claim by the employee for workers’ compensation benefits “in the event [the employee] voluntarily terminates his employment with the Employer for reasons unrelated to his cervical spine disability.” They argue that the compensation judge’s express and uncontested conclusion in Finding 13 that “[t]he employee did not resign from his employment with [the employer]” and her contested conclusion in Finding 19 that “[t]he employee has not lost or resigned his employment with the employer causally related to the work injury” are inconsistent with an award of medical benefits under the stipulation. They contend that the employee remains an employee of the employer on medical disability leave, that, as concluded at both Finding 13 and Finding 19, the employee did not resign from that employment, and that any involuntary cessation in that employment is related not to the employee’s work injury but to his non work-related edema condition. We are not persuaded.
The employer and insurer’s principal contention is that their continued delay in putting the employee back to work at his job was based on a conclusion that his non work-related edema condition continued to render him physically incapable of performing that job. This conclusion, however, was not ultimately supported by any expert medical opinion, and there existed ample medical evidence in support of the employee’s return to work. Drs. Gould and Simon agreed to that effect with regard to the employee’s edema condition, and Drs. Belde and Segal agreed to that effect with regard to the employee’s work-related spinal condition. Even Dr. Jetzer, who had initially found the employee restricted from working by his non work-related conditions, had by August 21, 2006, also concluded that the employee could work. In the end, as the employee has argued, the employee’s decision to seek work elsewhere was not a “voluntary” termination of his employment “for reasons unrelated to his cervical spine disability,” such as would have precluded his receipt of benefits under the stipulation, but rather a constructive discharge by the employer, by the employer’s having rendered his employment circumstances so intolerable as to force him to quit his job. See Rutschke v. Northwest Airlines, 96 Fed. Emp. Prac. Cas. (BNA) 886, 892-93 (D. Minn. 2005). In that the employee’s only surviving physical restrictions as of his decision to seek work elsewhere pertained to his work-related condition, the employee’s constructive termination by the employer renders his circumstances ones reasonably entitling him to claim benefits under section IV B1 of the parties’ stipulation, which allows such a claim “in the event the Employee resigns or loses his job with [the employer] because of his [work-related] cervical spine disability.” Nor is such a claim precluded under section IV B3 of the stipulation, in that the employee’s termination was neither a voluntary one nor the result of gross misconduct. We affirm the compensation judge’s award of medical benefits.
2. The Cross-Appeal: Loss of Job Due to Work Injury
As referenced above, section IV, paragraph B1, of the parties’ stipulation for settlement provides in part that, “in the event the Employee resigns or loses his job with [the employer] because of his cervical spine disability, he will be entitled to claims for temporary partial disability benefits, permanent total disability benefits and future medical benefits without first vacating this Stipulation for Settlement.” At Finding 19, the compensation judge concluded in part, that “[t]he employee has not lost or resigned his employment with the employer causally related to the work injury.” Citing Rutschke, the employee contends that the employer has constructively terminated his employment by rendering his employment status so intolerable as to force him to quit his job and to seek employment elsewhere. As such, he contends that the judge erred in finding that “[t]he employee has not lost or resigned his employment with the employer causally related to the work injury.” As we have indicated and explained in our previous section, we agree with this construction of the employer’s extended delay in putting the employee back to work. Therefore we grant the employee’s appeal and reverse the judge’s conclusion that “[t]he employee has not lost or resigned his employment with the employer causally related to the work injury.”
 The employee appealed also from the compensation judge’s denial of temporary partial disability benefits, but he has not briefed the issue, and therefore we will not address it. See Minn. R. 9800.0900, subp. 1 (“[i]ssues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court”).
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 The employee’s weekly wage was at issue at the hearing below, and the finding that contains, among other conclusions, the compensation judge’s conclusion that the date-of-injury wage was $560.00 is here under appeal by both parties; but neither party has briefed any issue as to that conclusion, and therefore we will not address it. See Minn. R. 9800.0900, subp. 1.
 In the findings and order here at issue, two different findings are identified as Finding 1. In the second Finding 1, the compensation judge states, “The parties stipulated that the employee sustained a Gillette injury to his cervical spine on August 15, 1997 while the employer was insured by Wausau” (underscoring added). In our reading of the stipulation for settlement, this is not accurate, in that the employer and insurer appear to have retained their defenses to the employee’s claims. However, in that neither party has appealed from the finding, we will not address any issue arising therefrom. See Minn. Stat. § 176.421, subd. 6 (“On an appeal taken under this section, the Workers’ Compensation Court of Appeals’ review is limited to the issues raised by the parties in the notice of appeal or by a cross-appeal.”) See also Ruether v. State, Mankato State University, 455 N.W.2d 475, 479, 42 W.C.D. 1118, 1124 (Minn. 1990).
 This is according to unappealed Finding 8 of the compensation judge.