MARIA (DUNAHOO) OLLIKKALA, Employee, v. RSI, INC., SELF-INSURED/BERKLEY RISK ADM’RS CO., Employer/Appellant.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 11, 2009
PRACTICE & PROCEDURE - INDEPENDENT MEDICAL EXAMINATION; STATUTES CONSTRUED - MINN. STAT. § 176.155, SUBD. 1. Where the employer had requested a subsequent independent examination with a different examiner on a different medical issue, where the judge did not deny the employer’s right to the later examination but only the change of examiner, and where the judge's denial appeared based only on a conclusion that the previous examiner appeared qualified to perform the subsequent examination, the judge’s order denying the employer's motion to compel attendance at the examination with the new examiner was an improper limitation of the employer's right under Minn. Stat. § 176.155, subd. 1.
PENALTIES. Where the judge offered no real analysis of the issue but it was apparent from the record that the employer had neglected to pay interest on benefits awarded under the judge’s findings and order and had delayed in the payment of attorney fees, the compensation judge's award of a $250.00 penalty was affirmed, notwithstanding the fact that the employee's entitlement to interest had not been pleaded before the judge.
Affirmed in part and reversed, vacated, and remanded in part.
Determined by: Pederson, J., Rykken, J., and Wilson, J.
Compensation Judge: Paul V. Rieke
Attorneys: David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Respondent. Timothy P. Jung, Lind, Jensen, Sullivan & Peterson, Minneapolis, MN, for the Appellant.
WILLIAM R. PEDERSON, Judge
The self-insured employer appeals from the compensation judge’s order denying its motion to compel the employee’s attendance at an adverse medical examination; from the judge’s finding that a proposed surgery is reasonable, necessary, and causally related to the employee’s work injury; and from the judge’s award of penalties. We reverse the order denying motion to compel, we vacate the findings and order except for the award of penalties, and we remand the matter to the compensation judge for further proceedings on the issue of the proposed surgery.
Maria (Dunahoo) Ollikkala [the employee] began working for Residential Services of Northeastern Minnesota, Inc. [the employer], in April of 2002. The employer operated a group home facility in Cook, Minnesota, where the employee worked as a lead worker, caring for four adult residents who required round-the-clock care. On September 19, 2006, the employee, who was 27 years old at the time, sustained an injury to her low back while helping a co-worker lift a resident. The employee had not experienced low back problems or undergone any medical treatment for her low back prior to this incident. The employer admitted liability for the low back injury and commenced payment of wage loss benefits.
The employee sought medical treatment for her injury with Dr. Frederick Webber at Scenic River Medical Center in Cook. The employee complained of low back pain and of pain radiating down both legs. She was referred for physical therapy, which resulted in no improvement, and thereafter, on October 25, 2006, for an MRI scan of the lumbar spine. The scan showed grade I spondylolisthesis at L5-S1 and degenerative disc disease with significant desiccation/narrowing at that same level, milder at L4-5. The employee was then referred to the Duluth Clinic for a neurosurgical consultation with Dr. Eric Rudd.
Dr. Rudd examined the employee on December 5, 2006. He diagnosed a lumbar strain related to the employee’s work injury, along with preexisting degenerative disc disease and preexisting grade I spondylolisthesis. While he did not see the MRI findings as acute, he questioned whether the employee’s injury might represent “'awakening’ of a previously quiescent syndrome.” Dr. Rudd concluded that “the [employee’s] L5-S1 spondylolisthesis superimposed on a markedly degenerative disk may well prove refractory to conservative treatment. In that event, she could require a fusion.” He referred the employee to occupational medicine specialist Dr. Brian Konowalchuk for further treatment and assessment of the work-relatedness of her condition.
Dr. Konowalchuk examined the employee on December 26, 2006, and released her to return to work four hours per day with additional restrictions. He ordered EMGs of both of her lower extremities and recommended that she recommence physical therapy. On January 22, 2007, the employee returned to Dr. Konowalchuk. EMGs done on that day were read as normal, and the doctor recommended a work hardening program. About two weeks later, on February 9, 2007, the employee saw her family doctor, Dr. Joanne Intveld, who placed her on Effexor for depression associated with her work injury. Dr. Intveld also made a referral to physiatrist Dr. Edward Martinson.
The employee was examined at the request of the employer on April 7, 2007, by orthopedic surgeon Dr. Tilok Ghose. Dr. Ghose obtained a history, reviewed the employee’s medical records, and performed a physical examination. In a report issued on that same date, Dr. Ghose concluded that the employee had sustained a sprain and strain to her lumbar spine as a result of the incident of September 19, 2006, which had completely gone on to heal by February 15, 2007. He found no objective findings on examination to explain her subjective complaints, and he concluded that the employee had reached maximum medical improvement [MMI] on February 15, 2007, when, according to Dr. Ghose, her range of motion and neurological exam were documented as normal by Dr. Konowalchuk. Dr. Ghose did not believe that medical treatment beyond February 15, 2007, was reasonable or necessary.
On May 10, 2007, the employer filed a Notice of Intention to Discontinue [NOID] the employee’s benefits based upon Dr. Ghose’s report, together with an offer of return to full-time work without restrictions. The employee’s treating doctors, including Dr. Martinson, who the employee saw on May 23, 2007, continued to impose restrictions on her ability to work, and she did not return to work with the employer. On June 15, 2007, the employee filed a claim petition, seeking payment of temporary total disability benefits continuing from May 10, 2007.
The employee’s claim for temporary total disability benefits and a prescription medication was heard by Compensation Judge Jerome Arnold on August 10, 2007. By findings and order dated September 27, 2007, the judge determined that the employee continued to require work restrictions causally related to her September 19, 2006, injury through the date of hearing. He determined that the employee’s failure to accept the job offer from the employer was reasonable and justified and that the employee had not reached MMI from the effects of her September 19, 2006, work injury. The judge specifically rejected Dr. Ghose’s contrary opinions on these issues. The judge’s order provided for payment of weekly indemnity benefits to the employee for the period May 10, 2007, “through the date of hearing continuing as warranted.” It provided also for the payment of attorney fees to the employee’s attorney pursuant to the 25/20 statutory formula, “without further order.” The judge’s decision was not appealed.
Following the judge’s decision, the employer made payment of attorney fees through October 24, 2007, but thereafter, rather than being paid at regular intervals, the fees were withheld and not paid again until January 16, 2008, after inquiry by employee’s counsel. Around this same time, and on numerous occasions thereafter, employee’s counsel also requested payment of interest on benefits awarded in Judge Arnold's September 27, 2007, findings and order. Interest was evidently not paid by the employer until October of 2008.
On February 15, 2008, the employee was again examined by Dr. Ghose on behalf of the employer. Dr. Ghose reiterated his opinions that the employee had reached MMI as of February 15, 2007, and that her 2006 work injury had fully resolved without the need for any work restrictions. Dr. Ghose reported that the employee “present[ed] with significant subjective symptoms that do not follow any normal anatomy or physiology. Specifically, she has findings consistent with Waddell’s symptoms.” He attributed the employee’s ongoing “waxing and waning” symptoms to her preexisting spondylolysis and spondylolisthesis.
On March 6, 2008, the employee filed a claim petition, seeking penalties for the employer’s failure to pay benefits as required by the findings and order of September 27, 2007. On March 20, 2008, the employer filed an NOID seeking to terminate wage loss benefits to the employee based upon Dr. Ghose’s report of February 15, 2008. On April 21, 2008, the employee filed an objection to the discontinuance, and on April 30, 2008, the employee amended her claim petition to include a claim for interest on the September 27, 2007, award.
On May 1, 2008, the employee was seen by Dr. Timothy Garvey at Twin Cities Spine Center for a surgical consultation. Dr. Garvey assessed a spondylolisthesis at the L5-S1 level and a small disc protrusion at the level above. He requested an opportunity to review her 2006 MRI scan before specific and finalized treatment recommendations could be made. He thought that a reasonable treatment option would most likely be a decompression and fusion from L4-S1.
A week later, on May 8, 2008, the employee returned for a follow-up evaluation with Dr. Konowalchuk. The employee had undergone a CT scan on April 14, 2008, that was consistent with a bilateral pars defect and spondylolisthesis. Dr. Konowalchuk thought that “this is almost certainly a major contributor to [the employee’s] back pain [and that] this is a surgically correctable and treatable condition.” He noted that Dr. Garvey had recommended surgery for this condition, and he concurred.
Dr. Garvey reviewed the employee’s MRI scan on May 29, 2008, and, in a letter to employee’s counsel on June 18, 2008, stated, “provided that her history is accurate and true, that she had significant increasing symptoms after the work injury in September, 2006, then that injury is a significant factor in her diagnosis.”
The employee filed a claim petition requesting lumbar fusion surgery on June 27, 2008. In an answer to the claim petition filed July 9, 2008, the employer denied that the claimed surgery “is reasonable, necessary, and causally related to the work injury.”
The employee’s claim for temporary total disability benefits continuing from March 20, 2008, and the employer’s claim that the employee had reached MMI with the service of Dr. Ghose’s report on March 14, 2008, were heard by Judge Arnold on July 1, 2008. In a findings and order issued July 11, 2008, the judge again found that the employee had been subject to work restrictions during the time period at issue, that she had cooperated with rehabilitation services, and that she had not yet reached MMI. The judge again adopted the opinions of the treating doctors over those offered by Dr. Ghose and ordered reinstatement of the employee’s temporary total disability benefits from March 20, 2008. The judge’s decision was not appealed.
Shortly after Judge Arnold’s July 11, 2008, findings and order, the employer arranged for a medical examination with spine surgeon Dr. Terry Hood on the specific issue of the proposed spinal fusion surgery raised by the claim petition on June 27, 2008. The employee objected to the proposed exam, and on August 12, 2008, the employer filed a motion to compel independent exam. In an affidavit accompanying the motion, counsel for the employer contended, in part, that the examination with Dr. Hood was necessary for defense against the employee’s claim for surgery because Dr. Ghose does not perform lumbar fusion surgery as part of his practice. On August 14, 2008, the employee filed a memorandum in opposition to the employer's motion, contending that Dr. Ghose and Dr. Hood are both orthopedic surgeons equally qualified to assess the employee’s injury. The employee agreed to another exam with Dr. Ghose but contended that an exam with Dr. Hood would essentially condone “doctor shopping" by the employer. The employer’s motion was argued before Compensation Judge Paul Rieke and, on August 21, 2008, the judge issued an order denying the employer’s motion. In his order, the judge concluded,
Dr. Ghose appears to be qualified to offer an opinion on the recommended low back fusion surgery, even if he does not regularly perform the exact surgery recommended. This is especially true if the dispute is regarding the cause of the need for the surgery, rather than an analysis regarding what treatment is best for the employee.
The employee’s claim petitions were consolidated for hearing and were heard by Judge Arnold on October 15, 2008. Issues presented to the judge included (1) “whether surgery as recommended by employee’s treating doctors represents reasonable and necessary treatment causally related to the employee’s low back injury of September 19, 2006,” and (2) “whether the employee is entitled to interest and/or penalties for alleged failures to make payments under previous decisions and orders of compensation judges.” Evidence presented to the compensation judge included portions of the employee’s medical records and various letters between the parties regarding benefit disputes. On the issue of the employee’s entitlement to the proposed fusion surgery, the employer obtained and offered a third report from Dr. Ghose, dated October 11, 2008. Based upon his evaluations of the employee on April 7, 2007, and February 15, 2008, as well as a review of medical records generated since his last examination of the employee, Dr. Ghose opined that not only was the employee a poor surgical candidate but, even if she had the recommended surgery, the surgery was not causally related to her work injury. In a findings and order issued December 8, 2008, the compensation judge found that the surgery proposed by Dr. Garvey was “reasonable treatment conditioned upon employee’s pre-surgical and post-surgical cessation of nicotine intake and exposure.” He also awarded a penalty of $250.00 for the employer’s failure to make payments in a timely manner “as the result of oversight involving small amounts.” The employer appeals from Judge Rieke’s order denying its motion to compel attendance at the medical exam with Dr. Hood and from Judge Arnold’s findings and order awarding the proposed surgery and penalties.
1. The Requested Independent Medical Examination
The employer appeals from the order of Compensation Judge Paul Rieke denying its request to compel the employee to submit to an adverse medical examination by Dr. Hood. We reverse.
Minnesota Statutes section 176.155, subdivision 1, provides in part, “The injured employee must submit to examination by the employer’s physician, if requested by the employer, and at reasonable times thereafter upon the employer’s request.” Minn. Stat. § 176.155, subd. 1. In Brecht v. General Mills, a panel of this court, in interpreting the statute, concluded that the statute does not require the employee to submit to any medical examination by the employer but only to reasonable requests for examination. Brecht v. General Mills, slip op. at 9 (W.C.C.A. Jan. 28, 1994). Whether a particular request for examination is reasonable is a fact question for the compensation judge. Sundin v. Carrier Water Conditioning, 47 W.C.D. 211, 214-15 (W.C.C.A. 1992). On many occasions, the supreme court has expressed a policy favoring inclusion of evidence in workers’ compensation matters. See, e.g., Bey v. Oxford Properties, Inc., 481 N.W.2d 40, 46 W.C.D. 198 (Minn. 1992); Scalf v. LaSalle Convalescent Home/Beverly Enterprises, 481 N.W.2d 364, 366, 46 W.C.D. 283, 286 (Minn. 1992) (“the purpose of [a workers’ compensation] proceeding is disclosure of the true facts, a purpose better served by acceptance of all competent, relevant, and material evidence”). As this court expressed in Brecht, “We believe this rule is applicable both to admission of medical reports and attendance at independent medical evaluations.” Brecht, slip op. at 9.
The employer contends that it was denied its statutory right to an adverse medical examination on the issue of the employee’s claimed need for lumbar fusion surgery. It argues that the examination was reasonable to address new litigation initiated by the employee for the purpose of obtaining a form of medical treatment not previously recommended or contemplated by any medical provider. In objecting to the proposed exam with Dr. Hood, the employee contended only that the employer had chosen its expert, Dr. Ghose, and that the employer's new selection of Dr. Hood was simply an effort to “shop” for a more favorable opinion to present to the judge, Dr. Ghose’s opinions having already been twice rejected. Under the facts presented by this case, we agree with the employer.
Under Minnesota Statutes section 176.155, the employer is entitled to obtain an adverse medical examination within 120 days of service of the claim petition, and there is nothing in that statute limiting the employer to a single examination or granting a compensation judge the authority to direct whom the employer must retain for an opinion. In his order denying the employer's motion to compel another examination, Judge Rieke did not deny the employer the right to the examination. In fact, the employee advised the court that she was agreeable to another exam--by Dr. Ghose. Rather, the judge appears to have denied the exam with Dr. Hood simply because the previous examiner, Dr. Ghose, appeared qualified to perform the requested analysis. Here, where the necessity of an exam was not disputed, only who may conduct that exam, the judge erred in denying the employer’s motion.
The employer is entitled to fully explore its defenses to the employee’s claim for surgery with a medical expert of its choice. Whether Dr. Ghose is qualified to analyze the employee’s surgical request is irrelevant. Surgery had not been recommended or claimed until after Dr. Ghose’s exams. He had only peripherally addressed the issue, and the employer was not required to seek his opinion when the issue was formally raised. The sole issue for the compensation judge was whether the requested exam was reasonable under the statute. The employee's argument that the employer engaged in "doctor shopping" may be of some relevance to the compensation judge at trial, but it is not relevant regarding whether an exam is reasonable in the first place.
The proposed examination with Dr. Hood was the first and only exam scheduled on the employee’s claim petition for fusion surgery, and there is no reasonable basis for precluding the employer from obtaining an expert opinion on the significant and permanent implications of the proposed surgery. Accordingly, Judge Rieke’s order denying the employer's motion to compel the employee's attendance at an adverse medical exam with Dr. Hood must be reversed, and that portion of Judge Arnold's December 8, 2008, findings and order pertaining to the requested surgery must be vacated. The matter is remanded to the compensation judge for a determination on the requested surgery after the employee has attended the examination with Dr. Hood and a report of the examination has been submitted to the court. The employee shall be entitled to submit further evidence in light of Dr. Hood’s report, and both parties may move the court for orders allowing oral testimony if desired.
At Finding 7 of his December 8, 2008, findings and order, Compensation Judge Arnold determined that “"[t]he employer/insurer has failed to make payments in a timely manner under previous orders of the Court as the result of oversight involving small amounts. A penalty of $250.00 for those delays is found to be reasonable and payable.” The judge offered no further analysis on this issue. The employer contends that substantial evidence in the record does not support the judge’s award of penalties. Specifically, the employer argues that it made in a timely manner all payments ordered by the judge in his September 27, 2007, findings and order. Moreover, it argues, the employee failed to present any itemization or explanation at hearing as to what benefits remained unpaid, nor did the compensation judge articulate what “small amounts” were untimely. We are not persuaded.
While we agree that the judge offered no real analysis of the issue, it is apparent from the record that the employer neglected to pay interest on the benefits awarded under the judge’s September 27, 2007, findings and order and delayed in the payment of attorney fees. We have held on a number of occasions that interest on benefits that are due is payable under the statute whether or not entitlement to interest has been pleaded or specifically awarded. See, e.g., Hanegmon v. National Steel Pellet, No. WC04-140 (W.C.C.A. Oct. 6, 2004); Helquist v. Kentucky Fried Chicken, slip op. (W.C.C.A. Oct. 19, 1993), citing Crimmins v. NACM N. Central Corp., 45 W.C.D. 435 (W.C.C.A. 1991) (interest pursuant to Minn. Stat. § 176.221, subd. 7, is mandatory). We believe that the record adequately supports the judge’s $250.00 penalty in this case. Therefore the judge’s penalty award is affirmed.
 Some facts in this background have been drawn from the unappealed findings issued September 27, 2007, and July 11, 2008.