CHRIS E. DAHL, Employee, v. DUNN ENTERS., INC., SELF-INSURED/MEADOWBROOK CLAIMS SERVS., Employer/Appellant.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 14, 2009
SETTLEMENTS - INTERPRETATION. The compensation judge erred in concluding that the employee’s claim for treatment for tinnitus was not barred by the parties’ stipulation for settlement.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Danny P. Kelly
Attorneys: William H. Getts, Minneapolis, MN, for the Respondent. T. Michael Kilbury, Peterson, Logren & Kilbury, Saint Paul, MN, for the Appellant.
DEBRA A. WILSON, Judge
The self-insured employer appeals from the judge’s finding that the parties’ settlement agreement does not bar the employee’s claim for treatment of tinnitus. We reverse.
On October 28, 2002, the employee was involved in a collision while working for Dunn Enterprises, Inc. [the employer], as a motorcycle escort for funerals. The next day, he sought treatment at Now Care, where he complained of a painful left fifth toe, headache, and some memory problems. He was referred to St. John’s Hospital emergency room, where a CT scan showed no intracranial abnormality. The diagnosis was a closed head injury, with musculoskeletal injury, and probable fracture of the left fifth toe.
On November 18, 2002, the employee was seen by Dr. Soren Ryberg, at Noran Neurological Clinic [Noran Clinic]. At that office visit, the employee complained of head, neck, and back pain, difficulty with concentration, memory, word finding, and mental processing, pain in the left shoulder, elbow, wrist, thumb, knee, and ankle, ringing in the ears, and some loss of taste and smell. Noting that the employee’s history was “most significant for a rather pronounced post concussive syndrome,” Dr. Ryberg requested an MRI and neuropsychometric testing. The MRI of the employee’s brain, performed on November 23, 2002, was interpreted as normal.
Three days later, on November 26, 2002, the employee was seen by a certified nurse practitioner at the Noran Clinic. Her notes reflect, in part, that the employee was complaining of intermittent tinnitus and that his biggest concern was his post-concussive syndrome.
The employee was seen again by Dr. Ryberg on February 3, 2003. At that time, the doctor noted that neuropsychometric testing “did not demonstrate any evidence of moderate or severe brain injury.” While “[t]here was a question of subtle brain injury, . . . alternative explanations were offered, as well.”
On May 5, 2003, Dr. Ryberg referred the employee to “an ENT doctor, Robert Rosenberg, M.D., regarding the tinnitus on the right side.”
The employee was examined by Dr. Rosenberg, at Southdale Otolaryngology, P.A., on May 22, 2003. The doctor’s notes for that date reflect that the employee had been experiencing ringing in his ears since the work injury, that he had trouble understanding speech with background noise, that he had to turn up the volume on the television to understand, and that he had trouble determining from which direction sounds were coming. The doctor recorded, “[h]e denies noise exposure and there is no family history of hearing loss.” After an examination and audiometric testing, Dr. Rosenberg noted that “his eardrums are normal and the ear canals are clear . . . . His hearing is normal in both ears. He has 100% discrimination in a quiet sound booth. He has normal eardrum mobility on tympanograms and no reflex decay.” Dr. Rosenberg then went on to conclude, “I believe his problems with discrimination and noise and the ringing are result of central damage from the concussion.” In a letter written to Dr. Ryberg that same day, Dr. Rosenberg stated, “I believe the tinnitus and the problems with discrimination are central from the head injury.”
In May of 2004, the parties entered into a partial stipulation for settlement. According to that stipulation, the employee was claiming a work injury “affecting Employee’s left toe, hearing and psychological” and that “as a result of the psychological injury and hearing loss he received medical treatment with Noran Clinic . . . Southdale Otolaryngology . . . and Abbott Northwestern Hospital.” The employer admitted a left toe injury occurring on October 28, 2002, but denied “liability for the claimed psychological and hearing loss injuries.” In return for compromised payments to the providers, the employee agreed to a full, final, and complete settlement of any and all claims “for the alleged, yet denied, October 28, 2002 hearing loss and psychological injury.” A partial award on stipulation was filed on May 28, 2004.
The employee returned to Dr. Rosenberg on July 17, 2006, again complaining of tinnitus. The doctor noted that the employee “has trouble understanding speech in a noisy environment, but not in a quiet environment.” The doctor performed audiometric testing and again concluded, “I think his problems are central.”
In 2008, the employee filed a medical request, seeking payment of Dr. Rosenberg’s bill for the 2006 exam. The employer denied that the treatment was related to the work injury and further alleged that the employee’s claim was closed out by the terms of the 2004 settlement.
On February 16, 2009, Dr. Rosenberg wrote to the employee’s attorney, stating,
[t]innitus is not a form of hearing loss, although it frequently accompanies hearing loss. We do not know the cause of tinnitus. It is not always caused by the ears, but it could be occurring in the brain. In [the employee’s] case it was most likely caused by brain injury and not by ear injury.
A hearing was held on the employee’s medical request on March 27, 2009, and, in a findings and order filed on April 23, 2009, the compensation judge found that the employee’s tinnitus was causally related to his October 28, 2002, work injury and that the stipulation for settlement bars claims for hearing loss but not claims for tinnitus. The employer appeals.
In the finding at issue here, the compensation judge concluded as follows:
It is determined that the Partial Stipulation for Settlement and the Partial Award on Stipulation served and filed May 28, 2004 does not bar the employee’s claim for the payment of the medical expense incurred on July 17, 2006 with Dr. Rosenberg at Southdale Otolaryngology. The Stipulation bars claims for hearing loss, but not claims for tinnitus. The conditions of hearing loss and tinnitus are distinctly different. The Stipulation for Settlement specifically closed out distinctive claims while noting that ongoing litigation was left open for claims not delineated in the Stipulation. The Stipulation on its face, within the four corners of the document, clearly does not close out the condition of tinnitus.
The judge provided no memorandum to explain his decision.
On appeal, the employer contends that the employee’s claim for the disputed care and treatment provided by Dr. Rosenberg on July 17, 2006, is foreclosed by the terms of the parties’ settlement agreement. We agree.
The employee saw Dr. Rosenberg in 2003 - - prior to the settlement - - for symptoms typically associated with hearing loss, and the diagnosis was tinnitus. At that time, Dr. Rosenberg opined that the tinnitus and the problems with discrimination were “central from the head injury, as the ears themselves are functioning normally.” Nonetheless, in the stipulation for settlement, the employee contended that his work injury had affected his hearing and that, as a result of hearing loss, he had received treatment from Dr. Rosenberg. In 2006 - - following settlement - - the employee continued to experience symptoms typically associated with hearing loss, and Dr. Rosenberg’s diagnosis was, again, tinnitus. The treatment rendered by Dr. Rosenberg in 2006 appears to be identical to that rendered by him in 2003, and he again opined that the “[the employee’s] problems are central.” However, when the employee filed the 2008 medical request, he contended that Dr. Rosenberg was treating him for a head injury, not hearing loss, and that, because the stipulation for settlement closed out claims only for “hearing loss and psychological [injury],” his claim was not barred by the settlement. In his decision, the compensation judge ruled in the employee’s favor by distinguishing between claims for “hearing loss” and claims for “tinnitus.” Under the circumstances presented here, the judge erred.
At the time of the stipulation, the employee was claiming that he had sustained an injury affecting his hearing and that, as a result of his hearing loss, he had received treatment from Dr. Rosenberg. The employee cannot subsequently receive the identical treatment, from the same doctor, for the same symptoms, and the same diagnosis, and contend that that treatment is now somehow unrelated to his prior -- now closed-out -- claim for hearing loss, especially given that Dr. Rosenberg gave the same causation opinion in 2006 as he did in 2003. The compensation judge’s finding to the contrary is clearly erroneous. Accordingly, we reverse the judge’s decision and order awarding payment for the claimed July 17, 2006, treatment from Dr. Rosenberg.
 The settlement was apparently precipitated by a medical request filed by the employee for payment of bills from the Noran Clinic.
 Later in the partial stipulation for settlement, the employee contended that “he did suffer a left toe, head, and psychological injury of October 28, 2002.”