DANIELLE PINC, Employee/Appellant-Petitioner, v. STEPPING OUT, INC., and MINNESOTA ASSIGNED RISK PLAN/BERKLEY RISK ADM’RS CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
NOVEMBER 3, 2009
PRACTICE & PROCEDURE - REMAND. The compensation judge did not err by failing to admit new evidence before issuing a decision on remand.
VACATION OF AWARD. A findings and order denying a surgery need not be vacated in order for an employee to submit a new claim for the surgery with additional evidence.
Petition to vacate findings and order denied.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Danny P. Kelly
Attorneys: David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Appellant-Petitioner. Joan G. Hallock, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee appeals the compensation judge's denial of the employee's request for approval of right shoulder surgery on remand and petitions to vacate the compensation judge’s findings and order. We affirm the compensation judge’s decision and deny the petition to vacate.
This case was heard by this court on a previous appeal, and a decision was issued on March 6, 2009. See Pinc v. Stepping Out, Inc., No. WC08-233 (W.C.C.A. Mar. 6, 2009). A summary of the background follows.
On June 29, 2004, Danielle Pinc, the employee, was injured in a work-related motor vehicle accident while working for Stepping Out, Inc., the employer, which was insured for workers' compensation liability by the Minnesota Assigned Risk Plan, the insurer. The employer and insurer admitted liability for the employee's injuries. The employee initially treated with Dr. Rose Marie Langer and underwent physical therapy. An MRI of the employee’s cervical spine was within normal limits and an EMG of her right arm was read as normal.
In November 2004, the employee moved to Colorado. The employee sought a referral from the insurer for additional medical treatment, and was referred to Dr. David Zieg, an occupational medicine specialist in Denver. At an examination in December 2004, Dr. Zeig assessed the employee’s condition as cervical, thoracic, and right trapezius strain, as well as intermittent right arm pain and parathesias of an unclear etiology, and treated the employee with medication and home exercise. In February 2005, Dr. Zieg referred the employee to Dr. Barry Ogin, who treated the employee with trigger point injections, which provided temporary relief. Dr. Ogin also referred the employee for a 6-month health club membership to improve her parascapular muscle strength; the employer and insurer authorized a 3-month membership.
On April 4, 2006, the employee was examined by Dr. G. Gray Wells, orthopedic surgeon, at the employer and insurer's request. Dr. Wells opined that the employee had not yet attained maximum medical improvement (MMI) from her shoulder injury and recommended further evaluation of her shoulder problems. He also suggested that the employee might have thoracic outlet syndrome, that she did not require any work restrictions, and that she should continue exercising on her own without any chiropractic treatment. Evidently on or about the same day as that examination, the employee’s car was rear-ended in another motor vehicle accident. Following that accident, the employee sought emergency room treatment and then received follow-up care until June 2008 with Dr. Jason Steinle, a chiropractor, for her cervical and thoracic spine and her right shoulder. By June 19, 2006, Dr. Steinle concluded that the employee had reached MMI from the injuries she sustained in the April 2006 motor vehicle accident, but that her right shoulder pain persisted and that she had not yet reached MMI from her earlier injuries. Dr. Steinle continued to treat the employee's neck, upper back and right shoulder; his chart notes reflected the employee’s persistent right shoulder symptoms.
A February 19, 2007, ultrasound of the employee’s right shoulder indicated a mild right acromioclavicular (AC) joint sprain and evidence of mild tightness at the right posterior capsule, but no evidence of a rotator cuff tear, impingement syndrome or instability. The employee continued to note right shoulder pain, and experienced sleep difficulty due to that pain. Dr. Ogin treated the employee with a lidocaine injection to the right shoulder which did not provide relief, and then referred her to Dr. Philip Stull, an orthopedic surgeon, for a second opinion. During the course of his treatment of the employee, Dr. Stull noted tenderness over the right AC joint and a mildly positive impingement sign, and provided her with subacromial joint injections. By May 30, 2007, Dr. Stull stated that the employee had failed conservative measures and recommended right shoulder surgery, including an arthroscopy of the shoulder, distal clavicle excision, and an acromioplasty.
The employee's surgery was scheduled for June 18, 2007. On June 12, 2007, the employee underwent a pre-operative physical. The employer and insurer denied the surgery pending another independent medical examination of the employee.
On August 3, 2007, the employee was examined by Dr. Robert Mack, orthopedic surgeon, at the employer and insurer's request. Dr. Mack opined that there was no clinical or x-ray evidence of pathology in the right acromioclavicular joint or right shoulder. Dr. Mack recommended six additional physical therapy visits for instruction on a weight training program and swimming pool program, plus a one-year gym membership for implementing those programs. He recommended against right shoulder surgery, although he considered the medical treatment the employee had received to date to be reasonable, necessary, and causally related both to her 2004 work injury and her motor vehicle accident in April 2006.
The employee provided Dr. Mack's report to Dr. Stull. In a letter dated September 19, 2007, Dr. Stull stated that he had reviewed Dr. Mack's report and that although he found Dr. Mack's statements to be reasonable, he did not believe that the employee would improve with therapy. Dr. Stull again concluded that the proposed surgery was medically necessary and related to her work injuries. He prescribed six weeks of therapy, stating that he would then “revisit the [surgical] issue with her.”
The employee completed the additional therapy on September 25 and 28, and October 2, 12, 16, and 30, 2007. The therapy did not provide relief of the employee’s symptoms, as noted in the physical therapist's discharge summary of October 30, 2007. The employee returned to Dr. Stull, who continued to recommend surgery. In a letter dated July 2, 2008, Dr. Stull stated that the surgery was reasonable, necessary, and causally related to the June 2004 injury, and that the employee had “exhausted conservative measures and ha[d] not done well with them.”
On March 12, 2008, the employee filed a claim petition for approval of the surgery and reimbursement of her payment for the pre-operative physical examination. In their answer to the claim petition, the employer and insurer denied that the claimed benefits were reasonable, necessary, or causally related to the injury. A hearing was held on July 31, 2008. The employee testified that she continued to have shoulder pain and trouble sleeping due to that pain, and also testified that she was able to work 60 hours per week through two jobs with no restrictions. At the hearing, the employer and insurer asserted that the employee had not met the applicable treatment parameters for approval of surgery for this condition, citing Minn. R. 5221.6500, subp. 3.B., and Minn. R. 5221.6500, subp. 3.D.
In his findings and order served and filed September 26, 2008, the compensation judge found that the permanent treatment parameters were applicable but the employee had not met the parameters, and that a departure from the parameters was not appropriate. Relying on Dr. Mack’s opinion, the judge also concluded that even if the parameters were not applicable, the surgery was not reasonable and necessary, and therefore denied the employee's claim. The employee appealed on October 17, 2008.
On November 10, 2008, while the appeal was pending, the employee underwent the disputed surgery, performed by Dr. Stull. The surgery consisted of an arthroscopy with extensive debridement, an acromioplasty and release of CA ligaments, and a distal clavicle excision. In his surgical report, Dr. Stull noted some objective findings that he had detected during the surgery, but that had not been detected in pre-surgery radiologic studies. He stated that:
The AC joint showed some mild posttraumatic changes. The intraarticular disc was removed from the AC joint and the distal clavicle was then excised . . . .
The CA ligament was noted to be thickened . . . . A modest acromioplasty was performed planing the anterior half of the acromion flat and smooth creating a nice flat type I acrimon. . . . Thickened subacromial bursa consistent with chronic inflammation and impingement was resected.
Following a ten-week check-up on January 28, 2009, Dr. Stull stated that the employee’s examination showed full motion and excellent strength. The employee reported that she was pain free and doing well.
This court’s opinion on the employee’s initial appeal was issued on March 6, 2009. This court vacated the compensation judge’s finding that the medical treatment was not compensable under the permanent medical treatment parameters, concluding that the parameters were inapplicable since the employer and insurer had denied medical causation for the employee's right shoulder condition and her need for surgery. This court also vacated the judge’s alternative finding that the employee’s surgery was not reasonable and necessary since that finding was based, at least in part, on the compensation judge’s conclusion that the employee had not yet exhausted conservative medical treatment. This court noted that the employee had completed recommended additional physical therapy, and remanded the matter for further consideration based on the existing, current record.
On April 3, 2009, the employee filed a motion with the Office of Administrative Hearings to submit additional evidence of the employee’s successful surgery to the compensation judge; there was no objection filed by the employer and insurer to that motion. The 30-day appeal period from this court’s decision to the Minnesota Supreme Court expired on April 6, 2009; neither party appealed to the supreme court.
On April 7, 2009, the compensation judge issued his findings and order on remand, again denying the employee’s claims. The compensation judge concluded that the employee had not established that the right shoulder surgery recommended by Dr. Stull was reasonable and necessary. He again concluded that conservative treatment had not been exhausted, objective imaging was negative, and the employee’s physical examinations were equivocal, and denied her claim for surgery.
The compensation judge issued his findings and order based on the existing record, and did not consider post-hearing medical records when reviewing the matter on remand. In his findings and order, the judge did not address the employee’s motion to submit additional evidence. The employee appeals from the findings and order on remand.
On June 4, 2009, the employee also filed a petition to vacate the findings and order on remand based upon newly discovered evidence regarding the results of the employee’s surgery. The employer and insurer object to the petition to vacate.
The employee argues that the compensation judge erred by refusing to accept additional evidence on remand regarding the shoulder surgery she underwent after the first hearing and while the first appeal was pending at this court. This court’s initial decision indicated that the compensation judge should reconsider his initial decision based upon the current record made at the hearing held on July 31, 2008. The compensation judge, therefore, did not err by failing to accept the additional evidence offered by the employee regarding her surgery.
As a reviewing court, the workers' compensation court of appeals has jurisdiction on appeal to determine whether the compensation judge's findings and order are in conformity with the law, supported by substantial evidence, clearly erroneous or not, or procured by fraud, coercion or other improper conduct. Minn. Stat. § 176.421, subd. 1; see also Louks v. Be Lane, slip op. (W.C.C.A., Sept. 1, 1994). This court’s function is to review the record created at the hearing before the compensation judge and to determine whether substantial evidence supports the judge’s decision. In reviewing cases on appeal, this court is limited to examination of the transcript of the hearing and evidence submitted to and considered by the compensation judge. See Minn. Stat. § 176.421, subd. 1 (“in view of the entire record as submitted”). On appeal, this court may generally not consider evidence not contained in the record below. Gollop v. Shale H. Gollop, D.D.S., 389 N.W.2d 202, 38 W.C.D. 757 (Minn. 1986); Glasgow v. Franciscan Health Cmty, No. WC04-434 (W.C.C.A. May 2, 2005). We therefore will not consider the evidence regarding the employee’s surgery on appeal.
An employer must furnish such medical and surgical treatment for a work-related injury “as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury.” Minn. Stat. § 176.135, subd. 1(a). On remand, the compensation judge again found that the employee had not shown that the proposed surgery was reasonable and necessary since conservative treatment had not been exhausted, objective imaging was negative, and the physical examination were equivocal. On appeal, the employee argues that substantial evidence does not support the compensation judge’s conclusion that the employee’s right shoulder surgery does not represent reasonable and necessary treatment for the cure and relief of the effects of the employee’s work injury. She argues that the compensation judge erroneously relied on the expert medical opinion of Dr. Mack when denying the employee’s request for surgery. The primary issue on appeal, therefore, is whether the evidence in the record substantially supports the compensation judge’s findings and whether the compensation judge’s denial of the proposed surgery was clearly erroneous.
In his findings and order, the compensation judge delineated the basis for his conclusions, citing to the portions of the medical evidence on which he based his findings. He concluded that while the employee had completed six additional therapy sessions in 2007 before the first hearing, she had not received instruction in a weight training program or a swimming program as recommended by Dr. Mack during those sessions. The compensation judge found that the employee credibly testified that she has had pain in her right shoulder since her 2004 injury, and that conservative treatment had failed to relieve her shoulder pain. The judge also found, however, that the employee credibly testified that her sessions were similar to ones she had in the past and that the six therapy sessions in September and October 2007 did not provide relief. The judge specifically noted that the 2007 physical therapy records made no mention of instruction in a weight training program or swim-type exercise. On the basis of those findings, and concluding that the employee had not exhausted conservative treatment, the compensation judge concluded that the employee had not established that the proposed right shoulder surgery was reasonable and necessary.
The compensation judge accepted Dr. Mack’s opinion and found that the surgery, as proposed by Dr. Stull, would be premature. It is clear from his findings and order that the judge reviewed Dr. Stull’s reports as well as Dr. Mack’s. The compensation judge, however, found Dr. Mack’s opinion to be more persuasive than that of Dr. Stull. We note that it is the compensation judge’s responsibility, as a trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).
Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Based on our review of the record as a whole, and finding adequate evidentiary support for the judge’s conclusions in the record as it existed at the time of the hearing on July 31, 2008, we affirm the the compensation judge’s finding that the employee had not exhausted conservative treatment, and that the proposed surgery was not reasonable and necessary at that time. Accordingly, we affirm.
Petition to Vacate
Besides the pending appeal, the employee also filed a petition to vacate the compensation judge’s findings and order on remand. The employee argues that new findings detected during surgery and the successful result of her surgery constitute newly discovered evidence that provides a basis for vacating the findings and order.
This court may set aside a compensation judge’s award “for cause” pursuant to Minn. Stat. § 176.461. “Cause” is limited to fraud, a mutual mistake of fact, newly discovered evidence, or a substantial change in medical condition since the time of the award that was clearly not anticipated and could not reasonably have been anticipated at the time of the award. Minn. Stat. § 176.461; Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993). For the purposes of vacating a settlement or a decision, evidence is generally considered “newly discovered” only if the evidence was in existence at the time of the hearing but was not discoverable through reasonable diligence. See, e.g., Brainard v. Koch Servs., slip op. (W.C.C.A. Dec. 11, 1992); Sorenson v. Nelson Country Mkt., slip op. (W.C.C.A. Oct. 23, 1991).
In this case, the employee argues that the additional medical evidence, pathology that had not been detected pre-surgery, proves that the independent examiner’s assessment was erroneous, that the employee did have pathology in her right AC joint that was corrected by the surgery, and that the compensation judge erred in relying on the independent examiner’s opinion. The employee also argues that the Minnesota Supreme Court has allowed vacation of an award where there has been a development of new facts about an injury after the award, citing Monson v. White Bear Mitsubishi, 663 N.W.2d 534, 63 W.C.D. 337 (Minn. 2003) (petition to vacate award on settlement granted where new evidence indicated that there was a genuine and serious mutual mistake as to the nature and severity of the employee’s injury at the time of the settlement).
In this case, however, it is not necessary to vacate the findings and order on remand in order to forestall a finding of res judicata were the employee to bring a new claim for the surgery. The res judicata effect of a prior workers' compensation determination is limited to those issues and facts material to, and determinative of, benefit eligibility and events or circumstances previously at issue and in existence as of the date of the prior hearing. Where benefit eligibility depends upon factual circumstances subsequent to the prior hearing, the prior determination is res judicata only with respect to the period considered in the former hearing. See, e.g., Saenger v. Liberty Carton Co., 316 N.W.2d 737, 34 W.C.D. 499 (Minn. 1982). Issues involving the need for, or the reasonableness or effectiveness of, medical treatment are among those which may be affected by changed circumstances so as to preclude a res judicata effect on determinations for subsequent periods. See Cook v. Lloyd's Food Products, Inc., slip op. (W.C.C.A. Sept. 22, 1992) (prior finding denying need for surgery was not res judicata for later periods). In summary, if the employee were to proceed with a new claim for surgical expenses, the 2009 findings and order on remand would not have a res judicata effect because those findings were based on evidence that predated the employee’s 2008 surgery.
On the facts presented to this court, therefore, there is no reason for vacation of the findings and order on remand in order for the employee to proceed with a new claim. Accordingly, we deny the employee’s petition to vacate.
 The employee has titled the petition as an amended petition to vacate. There is only one petition to vacate on file so we do not identify the petition as amended.
 The record does not contain Dr. Wells’s report; this background information is recited in Dr. Ogin’s chart note dated February 1, 2007.