MINH V. NGUYEN, Employee, v. AUDIO COMMC’NS and SFM MUT. INS. CO., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
NOVEMBER 20, 2009
APPEALS - SCOPE OF REVIEW. The Workers' Compensation Court of Appeals will not address on appeal, for the first time, issues that have not been raised, considered or resolved by the compensation judge at hearing. Since the employer and insurer had argued that the employee was not permanently totally disabled but had not raised the issue of alternate dates on which the employee became disabled, the employer and insurer’s appeal of the finding that the employee’s medical and vocational condition resulted in permanent total disability as of March 4, 2008, based on their claim that such date was erroneous and that the compensation judge should have chosen an alternate date, is dismissed.
Determined by: Rykken, J., Pederson, J., and Johnson, C.J.
Compensation Judge: Peggy A. Brenden
Attorneys: DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for the Respondent. Danielle T. Bird, Lynn, Scharfenberg & Assocs., Minneapolis, MN, for the Appellants.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal the compensation judge’s finding that the employee was permanently totally disabled as of March 4, 2008. We dismiss the appeal.
On December 13, 2005, Minh Nguyen, the employee, sustained work-related injuries to his left shoulder and cervical spine while working for Audio Communications, the employer, which was insured for workers’ compensation liability by SFM Mutual Insurance Company, the insurer. After his injury, the employee sought medical treatment, and was able to work with restrictions until March 15, 2006, when the employer was no longer able to accommodate his restrictions. At that point, the employer commenced payment of temporary total disability benefits.
On July 5, 2006, as a result of his injury, the employee underwent a C5-6 and C6-7 fusion, using a bone graft from his left hip. As a result of complications from that surgery, the employee’s left leg was weak. On August 2, 2006, the employee fell on his left hip and sustained an admitted injury from that fall. Although the employee was released to return to work within restrictions by October 2006, he found no jobs within his restrictions, and has not returned to work since March 2006. The employee has since undergone additional orthopedic treatment, overseen by Dr. Sunny Kim; that treatment included surgery to his left shoulder in October 2007 and additional surgery to his cervical spine in February 2009.
On January 16, 2008, the employee filed a claim petition for underpayment of temporary total disability benefits and for payment of permanent partial disability benefits. In their answer to the employee’s claim petition, the employer and insurer denied the claimed benefits, asserting they had paid all benefits to which the employee was entitled, including ongoing temporary total disability benefits, and that the issue of permanency was premature as the employee had not yet reached maximum medical improvement.
The employee began collecting Social Security disability benefits in April 2008 and received temporary total disability benefits until early March 2008, when his entitlement to temporary total disability expired, pursuant to Minn. Stat. § 176.101, subd. 1(k).
In March 2008, Dr. Kim restricted the employee from any work, and recommended additional medical treatment, including trial use of a spinal cord stimulator to treat his leg pain and a cervical spine medial bundle branch block. In May 2008, at the request of the employer and insurer, the employee was evaluated by Dr. Mark Larkins, who concurred with Dr. Kim that the employee was restricted from performing his pre-injury job and that he had not yet reached maximum medical improvement. Although Dr. Larkins believed that the employee’s medical care to date had been reasonable, he recommended additional diagnostic tests. Following that additional testing, Dr. Kim recommended a second surgery, for removal of hardware from C5-7, repeat fusion and extension to C4, a recommendation with which Dr. Larkins agreed.
On October 1, 2008, the employee filed an amendment to his claim petition, claiming permanent total disability benefits as of February 26, 2008. By letter dated October 14, 2008, the employer and insurer objected, arguing that a decision regarding the employee’s permanent total disability status was premature, as the employee had undergone additional diagnostic studies and subsequently had been recommended additional medical treatment to improve his physical condition and symptoms.
The employee underwent a second surgery to his cervical spine on February 5, 2009, shortly before the hearing on this matter on February 18, 2009. At the outset of the hearing, the parties resolved certain issues. They stipulated that the employee had sustained the following levels of permanent partial disability of the whole body: 14% relative to his cervical spine, 2% relative to his left shoulder, and 4% relative to sensory loss in his left lower extremity. The employer and insurer paid benefits based on those permanency ratings, and also agreed to pay previously underpaid temporary total and temporary partial disability benefits.
The remaining issues at the hearing included whether the employee had been permanently totally disabled since March 4, 2008, and whether he was entitled to any additional permanent partial disability benefits as a result of his injuries to his left shoulder and cervical spine. The employer and insurer contested the permanent partial disability claim related to the employee’s cervical spine, and also argued that it was premature to assess the employee’s level of permanent partial disability relative to his left shoulder, given his continued medical treatment. The employer and insurer argued that the employee was not permanently totally disabled since his condition was not medically stable and could improve in the future. They asserted that the employee was undergoing continued medical treatment, that he has not yet reached maximum medical improvement, and that it was presently unknown what his future work restrictions will be. In support of their arguments, the employer and insurer relied on the opinion of Dr. Larkins, who, upon review of the employee’s current medical records, rendered an opinion that the employee was not permanently totally disabled, even after the February 2009 surgery, but that he would be temporarily totally disabled for at least three months during recovery from surgery. Dr. Larkins expected the employee to reach maximum medical improvement within six months to one year following surgery, at which time work restrictions could be assessed.
In her findings and order, the compensation judge concluded that the employee’s medical and vocational condition had resulted in permanent total disability from March 4, 2008, through the time of the hearing. The compensation judge also awarded the employee an additional 2.5% permanent partial disability of the whole body for his cervical spine condition. The employer and insurer appeal the compensation judge’s finding regarding the date that the employee became permanently totally disabled. They did not appeal the compensation judge’s award of additional permanent partial disability.
The employer and insurer argue that substantial evidence does not support the compensation judge’s finding regarding the date that the employee’s medical and vocational condition resulted in permanent total disability. On appeal, they do not claim that the compensation judge erred by finding that the employee was permanently totally disabled. They instead argue that the compensation judge should have determined that the employee had been disabled as of March 15, 2006, the date that he last worked, or as of January 23, 2007, when he was taken off work entirely by Dr. Kim, and not on March 4, 2008, the date assigned by the compensation judge, which was the last day the employee was paid temporary total disability benefits.
At the hearing, the compensation judge listed the issues presented as whether the employee has been permanently totally disabled as of February 26, 2008, and whether the employee was entitled to additional permanent partial disability for his shoulder and his cervical spine. The employee’s attorney then clarified that the employee’s permanent total disability claim commenced as of March 4, 2008. During the hearing, the employer and insurer argued that the employee was not at maximum medical improvement for his condition and that his condition could improve after his recent surgery, and therefore that it was premature to determine that the employee was permanently totally disabled. At the hearing, however, the employer and insurer did not claim any alternate date for the start of the employee’s permanent total disability status.
The Workers' Compensation Court of Appeals will not address on appeal, for the first time, issues that have not been raised, considered or resolved by the compensation judge at hearing. Barnett v. Pillsbury Co., 34 W.C.D. 581 (W.C.C.A. 1982) (issue first raised at appellate hearing is not timely); see also Kern v. Graco, Inc., slip op. (W.C.C.A. Aug. 6, 1992); Garrett v. Ford Motor Co., slip op. (W.C.C.A. May 12, 1992) (issue of overpayment credit raised for the first time on appeal will not be addressed by the WCCA). Neither in their response to the employee’s amended claim petition nor by argument to the compensation judge at the hearing did the employer and insurer assert the alternative theory that is now raised on appeal, that is, assertion of an earlier date of permanent total disability status. The argument they presented to the compensation judge at the hearing was that it was premature to determine whether the employee was permanent totally disabled, in view of his recent surgery and his anticipated recovery from that surgery.
We therefore will not address the appeal since the issue of an alternate date was not before the compensation judge. Since there are no other issues raised on appeal, the employer and insurer’s appeal is dismissed.
 Although the employee originally sought permanent total disability benefits as of February 26, 2008, at the hearing the employee’s attorney clarified that the permanent total claim commenced as of March 4, 2008, which evidently was the last date that the employer and insurer paid temporary total disability benefits.