JEFF ELLINGBOE, Employee, v. LOWES HOME CTRS., INC., and SEDGWICK CLAIMS MGMT. SERVS., INC., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 13, 2011
PRACTICE & PROCEDURE - EXPEDITED HEARING; APPEALS - SCOPE OF REVIEW. Where the issue of job search was not raised in the notice of intention to discontinue and where the employee had no notice that the employer was attempting to raise this issue at hearing, the issue of job search was not properly before the compensation judge and not considered by this court.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Gary M. Hall
Attorneys: Thomas A. Klint and William J. Marshall, Midwest Disability, Coon Rapids, MN, for the Respondent. Craig B. Nichols and Stacey H. Sorenson, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s decision that the employee’s work injury was a substantial contributing factor in his ongoing disability and from the award of temporary total disability benefits and rehabilitation services. We affirm.
Jeff Ellingboe began working for Lowes Home Centers in October 2008. His job was a customer service assistant in the lumber department in the store in Maple Grove. Generally, his duties were to help customers fill orders and he was required to stand or walk on concrete flooring during his entire shift. He worked varying shifts on a full-time schedule. In July 2009, he transferred to the Cambridge store but his duties remained unchanged.
About three months after he began working at Lowes, the employee started experiencing left foot pain. Initially, he noticed an aching pain in the bottom and side of his left foot. His pain started about an hour into his shift and lessened after work. The employee did not seek medical care until the pain became what he described in his testimony at the hearing as unbearable. He continued to work his regular duties during this time. The employee saw Dr. Wilfred Gould, his general practitioner, on September 25, 2009, complaining of bilateral heel pain for some months. It was noted that he was standing on concrete for long hours and had his worst pain in the morning immediately on rising and weight bearing. Dr. Gould diagnosed plantar fasciitis, provided a prescription for naprosyn, and referred the employee to a podiatrist.
The employee consulted with a podiatrist, Dr. Jason Keppler, on September 30, 2009. Although the employee reported that both feet were “extremely painful,” on exam, Dr. Keppler found pain only in the left foot. He diagnosed plantar fasciitis, left foot, and did a steroid injection to the left heel. Dr. Keppler also prescribed vicodin and recommended custom orthotics. When he returned on October 6, the employee reported no improvement in his symptoms from the steroid injection.
On October 13, Dr. Keppler noted that conservative treatments of anti-inflammatories, steroid injection, and Medrol Dosepak had all failed. The employee had responded well to Low-Dye strapping, and, based on this result, Dr. Keppler provided custom orthotics. On December 9, 2009, the employee reported the custom orthotics had not provided any relief of symptoms. On examination on that date, Dr. Keppler found, “significant pain with palpation to the plantar fascial insertion left foot.” Given the lack of improvement from conservative treatment, surgery was advised.
On December 29, 2009, Dr. Keppler performed an open plantar fasciotomy to the left foot. The employee was taken off work for this procedure. The employer accepted liability for a September 25, 2009, work injury and began paying temporary total disability benefits to the employee. The employee has not returned to work since then.
Dr. Keppler’s initial chart notes after the surgery indicate the employee was progressing satisfactorily. The employee testified, however, that his pain was essentially unchanged by the surgery. Dr. Keppler referred him to physical therapy as well as evaluation at the Center for Pain Management.
Dr. Sam Elghor at the Center for Pain Management saw the employee on March 8, 2010. The employee complained of left foot pain and Dr. Elghor noted the employee was using a cane. The employee stated he was only able to walk less than a block even with the use of the cane. On exam, Dr. Elghor noted the left foot was paler and cooler to the touch than the right foot. Dr. Elghor was concerned that the employee had “CRPS, i.e. a variety of RSD.” He recommended a left lumbar sympathetic block.
The lumbar sympathetic block was done on March 17, 2010. At that time, Dr. Elghor diagnosed “reflex sympathetic dystrophy, left lower extremity.”
The employee returned to Dr. Keppler on March 24, 2010. He told Dr. Keppler there had been no relief from the block. Dr. Keppler recommended continuing physical therapy and follow up with the Center for Pain Management.
The employee returned to the Center for Pain Management on April 7, 2010, and saw PA-C Dan Truax. The employee reported no relief from the lumbar sympathetic block and stated the pain was “excruciating.” A trial of a spinal cord stimulator was suggested. The workers’ compensation insurer refused to authorize this treatment. There were no further appointments at the Center.
On June 9, 2010, the employee returned to Dr. Gould. Dr. Gould diagnosed neuropathy of the left leg and recommended referral to a neurologist. When the employee returned to see Dr. Gould on July 8, it was noted that he was waiting for an independent medical examination [IME] and that the referral to a neurologist had been denied. Dr. Gould refilled the employee’s prescription for vicodin.
The employee’s IME took place with Dr. Richard Strand on July 14, 2010. Dr. Strand’s conclusion was that the employee did not have a work-related plantar fasciitis at the time of his exam. He stated, “if indeed, he did develop a plantar fasciitis while working at Lowes, I find that questionable, but if that is the case, it certainly has resolved.” Dr. Strand attributed the employee’s pain to “posterior tib tendonitis” which he stated was due to genetic abnormalities of the employee’s feet, specifically flat feet. No treatment related to any work injury was needed and no work restrictions were necessary in Dr. Strand’s opinion. In a subsequent report, he stated the use of a spinal cord stimulator was inappropriate in all cases.
The employer and insurer filed a Notice of Intention to Discontinue Benefits [NOID] on July 22, 2010. The basis of the discontinuance, as stated on the notice, was given as “received IME report stating employee is at full-duty and MMI for the alleged work injury.” On July 30, 2010, a rehabilitation request to terminate rehabilitation services was filed by the employer and insurer. It stated that the work injury had resolved based on Dr. Strand’s report and that any ongoing disability was not the result of the employee’s work injury. An administrative conference was held on the NOID on August 11, 2010. On August 13, 2010, Compensation Judge Gary Hall issued an order allowing discontinuance.
The employee returned to see Dr. Gould on August 24, 2010, with symptoms that were essentially unchanged from his earlier visits. Dr. Gould continued to recommend a neurological evaluation. He also concluded that the employee was “for now not able to work.” The employee saw Dr. Keppler the next day. Dr. Keppler stated the employee had “chronic left foot pain, which is unchanged from his last visit.” Dr. Keppler stated he had no further treatment options to offer. He also stated, “all the symptoms that he has developed, which I have stated previously, can all be related to excessive periods of time on his feet without proper support.”
The employee filed an Objection to Discontinuance of Benefits. By an order dated October 8, 2010, the objection to discontinuance was consolidated with the employer and insurer’s request to terminate rehabilitation services.
The hearing was held on October 15, 2010, before Compensation Judge Gary Hall. Testifying at the hearing were the employee and the employee’s QRC, Steven Hollander. Deposition testimony of Dr. Keppler was presented as well.
Dr. Keppler’s deposition was taken on October 4, 2010. Before the deposition, Dr. Keppler had been given Dr. Strand’s reports to review. In addition, Dr. Keppler was provided a hypothetical question by the employee’s attorney. It was Dr. Keppler’s diagnosis that the employee had plantar fasciitis and it was his opinion that the employee’s foot condition was substantially aggravated by his employment at Lowes. Dr. Keppler had no further treatment recommendations for the employee and he recommended limited weight bearing on his left foot.
The compensation judge issued his findings and order on November 29, 2010. He found the employee to be a credible witness and concluded that Dr. Keppler’s opinions were more persuasive that those of Dr. Strand. He determined the work injury was a substantial contributing factor in the employee’s ongoing left foot condition, ordered temporary total disability benefits from July 22, 2010, and ordered the employer and insurer to provide rehabilitation services. The employer and insurer have appealed.
The NOID filed by the employer and insurer stated that the basis for discontinuance of temporary total disability benefits was the IME report of Dr. Strand, in which Dr. Strand had opined that the work injury at Lowes was resolved and that the employee’s ongoing symptoms were the result of his genetic makeup. This was the only issue addressed at the administrative conference on the NOID.
On appeal, the employer and insurer do not address the issues raised by the NOID or Dr. Strand’s opinion. Instead they argue that the employee did not engage in a diligent job search within the restrictions set by Dr. Keppler and that the compensation judge erred in not denying temporary total disability benefits on that basis. In response, the employee contends that the employer and insurer are attempting to improperly expand the issues beyond those addressed at the hearing. We agree with the employee.
The hearing on this case was scheduled after the employee filed an objection to discontinuance. As such, it was set as an expedited hearing under Minn. Stat. § 176.238, subd. 6. That section provides “the hearing shall be limited to the issues raised by the notice or petition unless all parties agree to expanding the issues.” This court has held in a number of decisions that expansion of the issues beyond those set out in the notice of discontinuance is improper. See Kuehl v. St. Paul Bank for Cooperatives, 62 W.C.D. 338 (W.C.C.A. 2002), and the cases cited therein.
The employer and insurer do not claim that the issue of job search was raised in the notice or at the administrative conference. Rather, they argue that the employee agreed to an expansion of issues at the hearing. According to this argument, when the employee’s attorney failed to object to the dozen questions or so about job search asked of the employee during cross-examination and made no objection to the employer and insurer’s attorney raising the issue in the her closing argument, the employee consented to job search as an issue. We see no way that an agreement of the employee to an expansion of the issues can be construed on these facts.
We note in this regard that the attorney for the employer and insurer told the compensation judge she would not make an opening statement setting out the issues but would instead make a closing argument. The attorney’s reference to a “second issue,” literally in the last seconds of her argument and made after the employee’s attorney had made his closing argument, is the only mention of job search as an issue at the hearing. The purpose of Minn. Stat. § 176.238, subd. 6, is the avoidance of litigation by ambush. “Basic fairness requires notice and a reasonable opportunity to be heard before decisions with respect to benefit entitlement may be made.” Kulenkamp v. TimeSavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1987) (emphasis added). The employer and insurer’s attempt to expand the issues beyond those raised by the NOID is not allowable and the issue of job search will not be considered by this court.
Further, it is clear that the issue of job search was not raised as far as the compensation judge was concerned. He made no findings on whether the employee had an obligation to job search, the work restrictions to be followed, and whether the employee’s cooperation with his QRC fulfilled that obligation. As an issue argued for the first time on appeal, job search is not properly before this court. May v. City of Richfield, 61 W.C.D. 292 (W.C.C.A. 2001).
In their brief, the employer and insurer make short mention of the issue actually litigated by the parties at the hearing, whether a causal relationship exists between the admitted work injury and the employee’s condition. The compensation judge determined the work injury was a substantial contributing factor in the employee’s ongoing left foot condition and we find substantial evidence in the record to support that determination. The compensation judge specifically adopted the opinions of Dr. Keppler and stated that he found those opinions more persuasive than those of Dr. Strand. We affirm this determination. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
The employer and insurer also appealed from the compensation judge’s decision to allow ongoing rehabilitation services but this issue is not raised in the brief. “Issues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be addressed by the court.” Minn. R. 9800.0900, subp. 2.
The decision of the compensation judge is affirmed.