RAUL RUIZ ARROYO, Employee, v. LIFE SCIENCE INNOVATIONS and SFM RISK SOLUTIONS, INC., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 12, 2012
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, in the form of a well-founded medical opinion and the credible testimony of the employee, supports the compensation judge’s award of temporary total disability benefits.
Determined by: Stofferahn, J., Johnson, J., and Milun, J.
Compensation Judge: Nancy Olson
Attorneys: Ross K. Menk, Minneapolis, MN, for the Respondent. George W. Kuehner, Jardine, Logan & O’Brien, Lake Elmo, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s denial of their request to discontinue temporary total disability benefits. We affirm.
The employee, Raul Ruis Arroyo, was working as an egg gatherer for Willmar Poultry, d/b/a Life Science Innovations, on May 21, 2010, when he sustained an injury to his low back. The employee was shoveling feed that had spilled and, while doing so, developed low back pain after about an hour. The employer and its insurer, SFM Risk Solutions, Inc., accepted liability for the employee’s injury.
The employee treated initially with Dr. Steve Hawkins at New Ulm Chiropractic on May 26, 2010. Dr. Hawkins took him off work and began chiropractic treatment. On June 21, 2010, Dr. Hawkins released the employee to work 4 hours a day with no lifting over 5 pounds and no bending, twisting or stooping. The employer offered light duty work by modifying the employee’s usual job and he returned to work. The employee noted increased symptoms after working even this modified position and went off work at his chiropractor’s recommendation.
In July 2010, the employee transferred his care to Dr. Charles Stephens, a family medicine practitioner at New Ulm Medical Center. Based on his examination and a recent MRI, Dr. Stephens assessed “displacement of lumbar intervertebral disc without myelopathy.” He prescribed pain medication, referred the employee for physical therapy, and took the employee off work.
Dr. Stephens also referred the employee to the Institute for Low Back and Neck Care where he saw Physicians Assistant Grayson Blomberg on September 14, 2010. PA Blomberg reviewed the employee’s situation with Dr. Strotham at the clinic and it was determined that the employee was not a surgical candidate. An epidural steroid injection at the right S1 nerve root and continued physical therapy were recommended. The employee chose not to have the steroid injection.
The employee was released to return to work with restrictions in September 2010 and returned to a modified egg gatherer position with the employer. The employee worked only a few days before stopping because of increased low back pain. Dr. Stephens took the employee off work and has not released the employee to work since that time.
At the request of the employer and insurer, the employee was evaluated by Dr. Ronald Bateman on September 29, 2010. Dr. Bateman concluded that the May 2010 work injury represented a “lumbar strain and temporary aggravation of pre-existing lumbar degenerative disc disease” which had resolved. He concluded also that the employee was at maximum medical improvement (MMI), had no permanent partial disability, and needed no work restrictions or further medical treatment.
Based on Dr. Bateman’s report, the employer and insurer filed a notice of intention to discontinue compensation benefits (NOID). An administrative conference was held and the request to discontinue benefits was denied. The employer and insurer filed a petition for an evidentiary hearing and the petition was heard by compensation judge Nancy Olson on January 21, 2011.
The compensation judge issued her findings and order on February 18, 2011. In her findings and order, the compensation judge identified the claims made by the employer and insurer for discontinuing benefits:
1. The employee had fully recovered from the work injury and had no ongoing physical restrictions from the injury;
2. The employee had reached maximum medical improvement and more than 90 days had passed since service of notice of MMI;
3. The employee had unreasonably refused an offer of suitable employment with the employer.
Evidence considered by the compensation judge included the employee’s testimony, medical records and reports, and the testimony of a representative of the employer as to the light duty work available for the employee. The compensation judge also admitted and considered a surveillance video done in November 2010. In her findings, the compensation judge stated she found the employee to be credible and she accepted Dr. Stephens’ opinion that the employee was not at MMI and was not released to return to work. The compensation judge found the employee to be temporarily totally disabled as of the date of hearing and denied the request of the employer and insurer to discontinue benefits. There was no appeal from the decision.
The employer and insurer had the employee evaluated by Dr. Paul Wicklund on June 20, 2011. In his report, Dr. Wicklund concluded that the employee had sustained a low back strain on the job on May 21, 2010, but that injury had resolved and the employee needed no physical restrictions as to work. Dr. Wicklund also stated that the employee had reached MMI in August 2010, had no permanent partial disability, and was not in need of any treatment for his low back.
The employer and insurer filed an NOID. Benefits were discontinued at the administrative conference and the employee filed a request for a formal hearing. The hearing was held on October 18, 2011, before Compensation Judge Olson.
At the beginning of the hearing, the Compensation Judge discussed the issues for determination with the parties. She identified the arguments raised by the employer and insurer as:
1. The employee’s work injury had resolved and he had no work restrictions from the injury;
2. The employee had reached MMI and more than 90 days had passed since service of notice of MMI; and
3. The employee had unreasonably refused suitable employment with the employer.
The employer and his QRC, Craig Galvin, testified at the hearing. Medical reports and records were placed in evidence and the employer and insurer also introduced a portion of the employee’s deposition taken in December 2010, the surveillance video taken in November 2010, and a partial transcript of the January 2011 hearing that contained the testimony of the employer’s representative.
The Compensation Judge issued her Findings and Order on November 15, 2011. In her findings, she stated that she found persuasive the physical therapy notes and records from Dr. Stephens on the issue of the employee’s restrictions from his work injury. The compensation judge specifically rejected the opinion of Drs. Bateman and Wicklund and she accepted Dr. Stephens’ opinion that the employee was not at MMI and was not able to work as the result of his work injury. The employer and insurer’s request to discontinue temporary total disability benefits as of August 8, 2011, was denied. The employer and insurer have appealed from the compensation judge’s decision.
The employer and insurer argue on appeal that the compensation judge improperly applied res judicata in considering the evidence and that, as a result, the compensation judge’s decision should be reversed.
Res judicata is a finality doctrine aimed at precluding re-litigation of issues that have been determined in an earlier hearing. Kaiser v. Northern States Power Co., 353 N.W.2d 899, 902 (Minn. 1988). In her first decision, the compensation judge determined the employee was temporarily totally disabled as of January 11, 2011. Res judicata would bar re-litigation of whether the employee was disabled on or before that date but would not prevent litigation of the employee’s disability status after January 11, 2011. Wilson v. Scanlon Int’l, Inc., 66 W.C.D. 108 (W.C.C.A 2006).
We find no indication in the record that the compensation judge made her determination in the second hearing because of her earlier decision and the employer and insurer do not make that argument. Instead, the employer and insurer refer to the consideration of the surveillance video by the compensation judge.
The video was introduced into evidence in the first hearing. It was taken over 3 days, lasts about 9 ½ minutes, and shows the employee getting in and out of a car and carrying some plastic grocery bags. In her February 2011 findings, the compensation judge stated,
The employer and insurer’s surveillance showing the employee performing a very short period of carrying grocery bags a short distance did not convince the compensation judge that the employee was fabricating his low back problems. The surveillance also did not convince the compensation judge that the employee was capable of working with no physical restrictions.”
In the most recent hearing, the employer and insurer offered the surveillance video again and the compensation judge accepted it into evidence. During his cross-examination of the employee, the attorney for the employer and insurer sought to impeach the employee’s credibility by contrasting the employee’s testimony of his restrictions set out in his December 2010 deposition with the activity shown on the video. The compensation judge interrupted counsel and stated: “Let’s move along. The findings are res judicata on that surveillance. I am not reconsidering the surveillance. It was tried at the last hearing.” The attorney for the employer and insurer then argued the finding as to the video from the first hearing had not dealt with the employee’s credibility. The compensation judge disagreed, stating that in finding the employee had not fabricated his complaints, she had determined the employee to be credible despite the surveillance video.
The employer and insurer refer to this exchange as “evidence preclusion” and an improper application of res judicata. We disagree. First, we believe it is important to note that there was no preclusion of any evidence. The video and part of the employee’s deposition were accepted as evidence and the employer and insurer were allowed to make their argument that the employee’s credibility was compromised by this evidence. The compensation judge also stated at the end of the hearing: “And I do want to make it clear, Mr. Kuehner, I’m not - - I haven’t made any prejudgment on this case. I think you do have some significant issues here as to whether there’s been maximum medical improvement, whether he’s capable of working with restriction. I just also wanted to make it clear that I consider the prior findings res judicata, and I wasn’t going to re-litigate those.”
Second, we agree with the compensation judge that any inconsistency between the employee’s deposition in December 2010 and his activities in November 2010 as reflected by the surveillance video was addressed in her findings from the first hearing. It was not inappropriate for the compensation judge to so advise a party. We find no basis for concluding that the compensation judge improperly applied res judicata in her consideration of the evidence in this case.
The employer and insurer also claim that the compensation judge improperly limited the cross-examination of the QRC. The QRC was asked a number of questions aimed at the issue of whether it was reasonable to rely on the conclusions of Dr. Stephens. The compensation judge cut off those questions, stating that the QRC was not qualified to express a medical opinion. We agree. No foundation was provided for an opinion by the QRC other than his 23 years experience as a QRC. Questions aimed at the appropriateness of diagnosis and medical treatment are beyond the scope of this QRC’s expertise, based on this foundation.
The employer and insurer also argue on appeal that the compensation judge erred in relying on Dr. Stephens’ conclusions and opinions. They charge that these conclusions and opinions are not supported by the weight of the evidence.
In considering this argument, we begin by noting that Dr. Stephens, by reason of his treatment of the employee, the testing done at his direction, and his review of physical therapy records and records from the Institute for Low Back and Neck Care, had adequate foundation for providing opinions on the medical questions in issue at the hearing. Grunst v. Immanuel-St. Joseph’s Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988).
The employer and insurer contend that Dr. Stephens, a family physician, has been the only doctor who has kept the employee off work. First, we note from the records that the physicians at the Institute for Low Back and Neck Care took the employee off work in October 2010 when the employee presented with the same type of complaints he made to Dr. Stephens. In addition, determination of medical issues is not done by simply adding up the number of doctors on each side of an issue. Finally, we are not prepared to state, as a matter of law, that the opinion of a treating family physician must not be accepted over the opinion of an IME specialist.
The employer and insurer charge that Dr. Stephens’ diagnosis is only of pain and that his diagnosis was not sufficient to support the employee’s claims. In reviewing Dr. Stephens’ records, however, it is apparent that he was conducting examination and assessments of the employee’s condition on an ongoing basis. His use of “low back pain (724.2)” and “sacroiliac pain (724.6)” simply reflects his use of medical codes which are typically used for billing.
This issue goes to the weight to be given to Dr. Stephens’ opinion and we conclude the compensation judge considered the argument of the employer and insurer on this point. We have held on a number of occasions that the choice between competing medical opinions is uniquely within the province of the compensation judge as fact finder. Further, this court will generally affirm the decision of a compensation judge that is based upon that choice. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Perry v. ADB Constr., Inc., 68 W.C.D. 491 (W.C.C.A. 2008). We find no basis for a deviation from that general rule in this case.
The decision of the compensation judge is affirmed.