MANUEL LALA, Employee/Appellant, v. AZIA REST. and SPECIALTY RISK SERVS., INC., Employer-Insurer, and NORAN NEUROLOGICAL CLINIC, Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
NOVEMBER 25, 2009
EVIDENCE - RES JUDICATA. Reconsideration of the employee’s weekly wage on the date of injury was barred by res judicata where the parties stipulated to a weekly wage in an earlier hearing.
PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s determination as to the extent of permanent partial disability.
PERMANENT TOTAL DISABILTY. Substantial evidence supports the compensation judge’s denial of permanent total disability based on the employee’s failure to engage in a reasonably diligent job search.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge Bradley J. Behr
Attorneys: James D. Connor, Law Offices of Ross K. Menk, Minneapolis, MN, for the Appellant. Devin J. Murphy, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee has appealed from a determination that his claim to reconsider his weekly wage on the date of injury was barred by res judicata. The employee also appeals from the denial of his claim for permanent total disability benefits and from the compensation judge’s determination of the extent of permanent partial disability. We affirm.
The employee, Manuel Lala, was employed as a cook by Azia Restaurant on October 28, 2005. The employee claimed he sustained a work injury on that date but the employer and insurer denied primary liability. A hearing on this and other issues was held before Compensation Judge Bradley J. Behr on July 25, 2006.
In his Findings and Order of October 3, 2006, the compensation judge determined that the employee sustained a work injury to the cervical, thoracic, and lumbar spine on October 28, 2005. The employee was awarded temporary total and temporary partial disability benefits, 7% permanent partial disability for his lumbar spine condition under Minn. R. 5223.0390, subp. 4.C.(1), and various medical expenses. The employee was also found eligible for rehabilitation services. No appeal was taken from the compensation judge’s decision.
The employee subsequently filed a claim petition which was heard by Compensation Judge Behr on February 4 and 10, 2009. The employee claimed an underpayment of temporary total and temporary partial disability benefits based on the use of an incorrect wage on the date of injury. The employee also claimed permanent total disability benefits from January 20, 2006, additional permanent partial disability benefits, and medical expenses.
In his May 5, 2009, Findings and Order, the compensation judge concluded that res judicata barred a reconsideration of the weekly wage on the date of injury because the parties had stipulated to a weekly wage at the 2006 hearing. The compensation judge also determined that the employee did not engage in a reasonable and diligent job search and, as a result, did not establish he was permanently totally disabled. The employee was found to have 20% permanent partial disability under Minn. R. 5223.0390, subp. C.(2) and subp. 5.B. Certain medical expenses were awarded as well. The employee has appealed.
The employee makes three arguments in his appeal:
1. The compensation judge erred in determining that res judicata barred the consideration of wages from a second job in determining the weekly wage on the date of injury.
2. The compensation judge erred in failing to award 28% permanent partial disability as claimed by the employee.
3. The compensation judge erred in denying the employee’s claim for permanent total disability.
Weekly Wage and Res Judicata
At the first hearing in 2006, the compensation judge and attorneys for the parties discussed the issues to be determined in the hearing. The employee’s weekly wage on the date of injury was one of the issues discussed and a transcript of that discussion is part of the record reviewed by this court.
There was no indication in the discussion that the employee had a second job at the time of his injury. The compensation judge stated, “Finally, I understand the parties have stipulated a weekly wage of $452.37? Is that the correct number?” Both attorneys answered, “Yes.” In his decision, the compensation judge identified the wage of $452.37 as the stipulated wage on the date of injury.
At the beginning of the hearing in 2009, the employee’s attorney advised the court that there had been an underpayment of wage loss benefits and “we have asserted a combined injury date wage with the employee’s second job.” It was the position of the employee that the 2006 stipulation as to wage was only for earnings from the employer, Azia Restaurant. The employer’s attorney argued that the stipulation was not so limited and that the agreement was on the wage on the date of injury. In his 2009 decision, the compensation judge found that “the question of the employee’s weekly wage on 10/28/05 was a material issue that was intentionally raised by undersigned compensation judge at hearing on 7/25/06. The wage calculation was thoughtfully considered and addressed by the parties, and ultimately determined in the 10/3/06 Findings and Order.” The compensation judge determined that reconsidering the question of the employee’s weekly wage was barred by res judicata.
On appeal the employee argues that the 2006 stipulation applied only to the wages from Azia Restaurant and that, in any event, a stipulation by the parties does not carry the same weight as a finding by a compensation judge in considering whether res judicata applies. We are not persuaded.
As we noted earlier, there is no indication in the record that the wage stipulation was anything other than an agreement as to the entire wage on the date of injury. In any case in which wage loss benefits are claimed, determination of the weekly wage on the injury date is a central issue. Clearly, the parties in 2006 would have intended to determine the full wage for the purpose of calculating the benefits to be paid. We reject the argument that the stipulated wage was meant to be a stipulation of only a part of the weekly wage. For whatever reason, the question of a second job was simply not raised by the employee in 2006.
In considering a compensation judge’s decision, we see no difference between a stipulated fact and a disputed fact which the compensation judge had to decide. Whether stipulated or disputed, facts which lead to a determination of the issues by a compensation judge are integral parts of the decision. We agree with the compensation judge that the wage stipulation in 2006 bars consideration of the wage issue again in 2009. Stanoch-Anderson v. Trial Courts/7th Judicial District, slip op. (W.C.C.A. Aug. 14, 2000). The employee’s remedy on this issue would seem to be a petition to vacate the 2006 findings pursuant to Minn. Stat. § 176.461.
Permanent Partial Disability
In 2006, the compensation judge awarded the employee 7% permanent partial disability under Minn. R. 5223.0390, subp. 4.C.(1), covering radicular pain with radiographic findings at a single level. In April 2007, Dr. Amir Mehbod performed an anterior foraminotomy at L5-S1 as well as anterior posterior fusion with instrumentation at L4-5 and L5-S1. The instrumentation was removed in August 2008. The employer and insurer voluntarily paid another 10% permanent partial disability to the employee.
A number of physicians provided opinions on the question of permanent partial disability. Dr. Mehbod in a Health Care Provider Report dated June 13, 2008, rated the employee as having 28% permanent partial disability of the whole body. He cited to 5223.0390, subp. 4.D., 9% for radicular pain or parathesias with objective radicular findings and radiographic findings, subp. 4.D.(4), 9% for an additional concurrent lesion at the same level or on either side at other level, and subp. 5.B., 10% for multiple level fusion surgery. As the compensation judge noted in his memorandum, Dr. Mehbod provided no rationale for his opinion.
The employer and insurer relied on the opinion of the IME, Dr. Gilbert Westreich, as set forth in his January 2009 report and in his deposition. He concluded that the permanent partial disability should be 17%, 7% as found by the compensation judge in 2006 and an additional 10% for the two level fusion done in 2007. Dr. Westreich was of the opinion that the employee’s work injury was a low back sprain that would have resolved after a few months.
The employee was treated by Dr. Fred Lux, a neurologist at Noran Clinic, beginning in July 2008. In a report of January 28, 2009, Dr. Lux indicated that the appropriate rating for permanent partial disability would be 28%, calculated in the same way as was done by Dr. Mehbod. In his initial report of November 21, 2008, however, he stated the employee’s permanent partial disability was 10% under 5223.0390, subp. 4, for multi-level radicular syndrome and he agreed in his deposition that, with the addition of 10% for the fusion surgery, this could be an alternative rating of permanent partial disability, given the ambiguous radiographic findings.
In his memorandum on this issue, the compensation judge explained his determination on the extent of permanent partial disability. “The employee’s diagnostic testing has clearly demonstrated degenerative disc disease at both L4-5 and L5-S1. There has not been objective evidence of nerve root impingement or other radicular findings. After reviewing all of the medical records and opinions, I find that the preponderance of the evidence supports a 20% ppd rating as proposed alternatively by Dr. Lux.”
The extent of permanent partial disability is a question of fact to be determined by the compensation judge. While opinions of a medical expert may be helpful, they are not binding on the compensation judge. Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987); Nerud v. Duininck Bros. Inc., 67 W.C.D. 456 (W.C.C.A. 2007). The question for this court is whether substantial evidence supports the compensation judge’s determination on this issue. We find substantial evidence supports the compensation judge’s decision as to the extent of permanent partial disability and his determination is affirmed.
Permanent Total Disability
The employee argues the compensation judge erred in denying his claim for permanent total disability benefits. Despite vocational deficits such as being an undocumented worker, his lack of education, and his inability to communicate in English, the employee was able to find work for a number of years before his injury. The employee claims that it has been the work injury which has made it impossible for him to work now and there is no likelihood of that situation changing in the future. We disagree.
The employee did not argue at the hearing that his restrictions were such that a job search would be futile. Boryca v. Marvin Lumber & Cedar, 487 N.W.2d 876, 47 W.C.D. 136 (Minn. 1992). Instead, it was his contention that he made a reasonably diligent job search for employment within his restrictions and had been unsuccessful. The employee’s position was supported by the testimony and opinions of his QRC.
The compensation judge determined that it was premature to award permanent total disability given the evidence in this case. First, the parties agreed that a chronic pain program was reasonable for the employee. The employee was evaluated for such a program by Dr. Matthew Monsein on January 13, 2009. Dr. Monsein stated, “while I believe the patient’s prognosis is guarded, I believe it is the best opportunity to improve clinically would be with this type of experience.” The compensation judge concluded this was evidence that the employee’s condition was not static and was subject to improvement which might increase the likelihood of his being able to return to work.
The employee had an FCE done in January 2008 before the surgery to remove the instrumentation in August 2008. The FCE limited the employee to occasional lifting of no more than 10 pounds. However, Dr. Lux, in his November 21, 2008, report, stated the employee was able to work at a light level, lifting no more than 20 pounds. The employee testified that he had limited his job search to kitchen work within a 10 pound lifting restriction. Both the QRC and the insurer’s vocational expert testified that with a 20 pound lifting restriction there was a wider variety of employment which would be available to the employee. Given the evidence, we cannot say that the compensation judge erred in concluding that the employee did not engage in a reasonable and diligent job search which precluded an award of permanent total disability. The compensation judge’s decision is affirmed.