LYNDON D. JOHNSON, Employee, v. MIDWEST PRECISION MACHINING and FEDERATED MUT. GROUP, Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 6, 2012
DISCONTINUANCE; PRACTICE & PROCEDURE - JUDGE ASSIGNMENT. The requirement for block assignments contained in Minn. Stat. § 176.307 (2010) supports the order of the assistant chief administrative law judge denying the employer and insurer’s motion to disqualify the assigned compensation judge. Nothing in the definition of “de novo hearing” contained in Minn. Stat. § 176.238, subd. 5, requires the hearing be conducted by a different judge. Pursuant to Minn. R. 1420.2600, subp. 2, the employer and insurer failed to timely file their motion to disqualify the assigned judge.
TEMPORARY TOTAL DISABILITY - WORK RESTRICTIONS. Substantial evidence, including adequately founded medical opinion, supports the compensation judge’s finding that employee had continuing restrictions on his ability to work and the judge’s denial of the employer and insurer’s petition to discontinue temporary total disability benefits.
Determined by: Johnson, J., Stofferahn, J., and Wilson, J.
Compensation Judge: John Ellefson
Attorneys: Luke M. Seifert, Quinlivan & Hughes, St. Cloud, MN, for the Respondent. Ryan J. Courtney, Fitch, Johnson, Larson & Held, Minneapolis, MN, for the Appellants.
THOMAS L. JOHNSON, Judge
The employer and insurer appeal an order of the assistant chief administrative law judge denying their motion to disqualify a compensation judge. They further appeal the compensation judge’s denial of their petition to discontinue compensation benefits. We affirm.
Lyndon D. Johnson, the employee, sustained an injury to his back on March 17, 2010, arising out of his employment with Midwest Precision Machining, the employer. The employer and its insurer admitted liability for the personal injury and commenced payment of temporary total disability benefits.
On March 17, 2010, the employee was seen at Urgent Care complaining of low back pain after repetitive bending and reaching at work. Carol Holton, FNP, diagnosed low back pain with radiation to the right leg, took the employee off work, and prescribed Flexeril and physical therapy. A lumbar MRI scan was obtained on April 19, 2010, which demonstrated mild facet arthrosis on the left and foraminal narrowing at L4-5.
On April 20, 2010, the employee saw Dr. Kourtney Bradford complaining of continuing low back pain with radiation into his right leg and numbness and tingling in his foot. The doctor diagnosed a psoas syndrome and back pain and continued the employee off work. On May 17, 2010, Dr. Ann Lee released the employee to return to light-duty work with restrictions on lifting and bending. On May 19, 2010, the employee saw Dr. Joseph Blonski complaining of a reoccurrence of back pain and muscle spasm while working. On examination, the doctor found tenderness in the employee’s right sacroiliac area with a limited range of lumbar motion. Dr. Blonski stated the employee’s continued back pain was related to his personal injury and he took the employee off work.
Dr. Lynn Miller, a neurosurgeon, examined the employee in June 2010 and diagnosed right sacroiliitis, lumbalgia, right S1 radiculopathy, and facet arthrosis. The doctor stated there was no neurosurgical treatment indicated for the employee’s spine but felt he would benefit from continued physical therapy and a referral to a pain management clinic. Dr. Miller continued the employee’s off-work status.
On June 30, 2010, Dr. Timothy Olson at the Center for Pain Management examined the employee on referral from Dr. Miller. The employee gave a history of intermittent low back problems associated with overuse which typically resolved without any long-term problems. However, the employee reported an exacerbation of his symptoms associated with extensive repetitive lifting at work on March 17, 2010. The employee complained of significant low back pain radiating into his right leg down to the foot aggravated by prolonged standing, sitting, lifting, bending and twisting. Following an examination, Dr. Olson diagnosed chronic axial low back pain with intermittent right lower extremity radiation, lumbrosacral arthropathy and spondylosis with associated myofascial pain. In July 2010, Dr. Olson performed an L4-5 epidural steroid injection and continued the employee’s off-work status.
Dr. Richard Strand examined the employee on August 3, 2010, at the request of the employer and insurer. The doctor opined that on March 17, 2010, the employee sustained a temporary aggravation of a minor pre-existing degenerative condition which resolved within six weeks. Dr. Strand noted that the employee continued to complain of pain but stated his subjective complaints outweighed any objective findings and opined the employee displayed significant symptom magnification.
Thereafter, the employer and insurer filed a Notice of Intention to Discontinue seeking to discontinue temporary total disability benefits alleging that the employee’s injury had fully resolved and he could return to work without restrictions. On September 1, 2010, the Office of Administrative Hearings [OAH] issued two notices. One was a Notice of Judge Assignment stating the matter had been assigned to Judge John Ellefson and the other scheduled an administrative conference under Minn. Stat. § 176.239 to be held before Judge Ellefson.
Following the administrative conference, Judge Ellefson issued an order denying the requested discontinuance. The employer and insurer filed a Petition to Discontinue Workers’ Compensation Benefits pursuant to Minn. Stat. § 176.238, subd. 5. OAH issued a Notice of Hearing assigning the petition for a hearing before Judge Ellefson. The employer and insurer then filed with OAH a Motion to Disqualify for Cause, requesting reassignment of the case to a different compensation judge. By order dated December 6, 2010, Assistant Chief Administrative Law Judge Timothy J. O’Malley denied the appellants’ motion to disqualify Judge Ellefson. The employer and insurer appealed Judge O’Malley’s Order to the Workers’ Compensation Court of Appeals. On appeal, this court concluded the court lacked jurisdiction to hear the appeal because the order did not finally determine the merits of the action. Johnson v. Midwest Precision Machining, No. WC10-5217 (W.C.C.A. Feb. 16, 2011).
The employee returned to see Dr. Olson in January 2011 and reported his pain was largely unchanged. The doctor performed a bilateral intra-articular facet block at L4-5 and instructed that the employee remain off work. In February 2011, Dr. Olson again performed lumbar facet blocks which reduced the employee’s pain. In March 2011, the doctor recommended a work hardening program. In April 2011, Dr. Olson released the employee to work four hours a day with restrictions on bending, crouching, crawling and lifting. On June 6, 2011, Dr. Olson stated the employee could work six hours a day but with continued restrictions on lifting and bending.
The employer and insurer’s petition to discontinue benefits was heard by Judge Ellefson on June 21, 2011. In Findings and Order served and filed July 25, 2011, Judge Ellefson found the employee was subject to work restrictions due to his personal injury and continued to be entitled to wage loss benefits and rehabilitation services. Accordingly, the compensation judge denied the appellants’ petition to discontinue. The employer and insurer appeal.
1. Compensation Judge Assignment
The appellants received an administrative decision with which they disagreed. They then filed a petition to discontinue benefits pursuant to Minn. Stat. § 176.239, subd. 8. Upon the filing of a petition to discontinue compensation, the employer is entitled to “a de novo hearing before a compensation judge to determine the right of the employer to discontinue compensation.” Minn. Stat. § 176.238, subd. 5. The appellants assert a de novo hearing requires an independent review of the evidence by a compensation judge other than the judge who conducted the administrative conference. The appellants contend Judge O’Malley’s denial of their motion to disqualify and remove Judge Ellefson was erroneous and contrary to statute.
A hearing de novo is defined as a “new hearing of a matter, conducted as if the original hearing had not taken place.” Black’s Law Dictionary 725 (7th ed. 1999). There is no requirement in the definition that the de novo hearing be conducted by a different judge. We further note the statutory phrase “de novo hearing” is not precise since there has been only one evidentiary hearing in this case. An administrative conference is not the equivalent of an evidentiary hearing and is not intended to be a forum for the final adjudication of disputed questions of fact or law. Clay v. American Residential Mortgage Corp., 56 W.C.D. 37 (W.C.C.A. 1996).
Minn. Stat. § 176.307 provides:
The chief administrative law judge must assign workers’ compensation cases to compensation judges using a block system type of assignment that, among other things, ensures that a case will remain with the same judge from commencement to conclusion unless the judge is removed from the case by exercise of a legal right of a party or by incapacity. The block system must be the principal means of assigning cases, but it may be supplemented by other systems of case assignment to ensure that cases are timely decided.
We find nothing in the statutes or case law which would compel the result urged by the appellants. Rather, the requirement for block assignments contained in Minn. Stat. § 176.307 supports the order of Judge O’Malley denying the appellants’ motion to disqualify Judge Ellefson. We also note that effective August 1, 2011, Minn. Stat. § 176.238, subd. 6, has been amended to provide that the de novo hearing must be held before a compensation judge other than the compensation judge who presided over the administrative conference.
2. Timeliness of Motion to Disqualify Judge
OAH served the parties with notice of a judge assignment on September 1, 2010. Judge Ellefson then conducted the administrative conference following which the appellants filed a petition to discontinue benefits. On November 17, 2010, the parties received notice from OAH that Judge Ellefson would hear the petition to discontinue and the appellants then filed a motion to disqualify the judge. The appellants contend their motion to disqualify was timely filed because it was not until November 17 that the appellants knew the de novo hearing would be held before Judge Ellefson. Accordingly, they contend OAH improperly denied their motion.
Minn. Stat. § 176.312 provides in part
In accordance with rules adopted by the chief administrative law judge, an affidavit of prejudice for cause may be filed by each party to the claim against a compensation judge assigned to hear the case.
Minn. R. 1420.2600, subp. 2, provides:
Disqualification by a party. A party or the party’s attorney may file an affidavit of prejudice and motion to disqualify a judge if the party reasonably believes that a hearing before the assigned judge cannot be fair due to the judge’s prejudice or bias. The affidavit must be served on opposing parties and filed with the chief judge not more than ten days after the filing party has received notice of the assigned judge or has knowledge of the grounds for disqualification, whichever occurs last.
The notice of judge assignment was provided to the parties on September 1, 2010. The appellants did not file their motion to disqualify until November 23, 2010, so it was not timely. The appellants nonetheless argue their failure to file a timely motion to disqualify the judge should be excused since they didn’t know the assignment of Judge Ellefson applied to both the administrative conference and the petition to discontinue. We are not persuaded. The rule is clear that a motion to disqualify a judge must be filed not more than 10 days after the filing party has received notice of the assigned judge. That the appellants incorrectly assumed Judge Ellefson would not be assigned to try the petition to discontinue is not grounds to ignore the plain meaning of the rule.
3. Denial of Petition to Discontinue Benefits
The compensation judge found the employee continued to have restrictions on his work activities and denied the appellants’ petition to discontinue benefits. The appellants argue there is no objective support for the conclusion that the employee continued to suffer from the effects of his work injury. Further, they argue the opinions of Dr. Olson lack foundation and the compensation judge erred in relying upon them. Accordingly, the appellants ask this court to reverse the compensation judge’s decision.
Dr. Strand opined that on March 17, 2010, the employee sustained a temporary aggravation of a pre-existing degenerative condition which resolved within 6 weeks. This opinion, if accepted by the compensation judge, would support a different result in this case. Under this court’s standard of review, however, the issue is not whether the evidence will support alternative findings, but rather whether the judge’s decision was “clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1. Substantial evidence is 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).
Although Dr. Strand opined the employee’s injury had resolved by the end of April 2010, Dr. Miller, in June 2010, concluded the employee still suffered from sacroiliitis and right S1 radiculopathy. On June 30, 2010, Dr. Olson examined the employee and noted limited range of lumbar motion and paralumbar tenderness and diagnosed lumbrosacral arthropathy, spondylosis, and chronic low back pain and began a series of facet blocks. In March 2011, Dr. Olson opined the employee continued to suffer from chronic low back pain and concluded the employee continued to require restrictions on his work activities. The records and reports of Dr. Miller and Dr. Olson provide substantial evidentiary support for the compensation judge’s decision.
By Report of Workability dated June 8, 2011, Dr. Olson outlined restrictions on the employee’s work activities including limitations on lifting, bending, crouching and crawling. The compensation judge accepted Dr. Olson’s opinion and concluded the employee could not return to work without restrictions. The appellants contend Dr. Olson lacked foundation for his opinions because they are based on the employee’s subjective complaints of pain which, they assert, are unreliable. We disagree.
Dr. Olson was familiar with the employee’s history and examined him on multiple occasions. This level of knowledge is sufficient to afford foundation for the opinions of a medical expert. See, e.g., Caizzo v. McDonald’s, 65 W.C.D. 378 (W.C.C.A. 2005). Further, the employee is the person most familiar with the severity of his symptoms and the compensation judge could properly base a finding of continuing restrictions based upon the employee’s testimony alone. Brening v. Roto Press, Inc., 306 Minn. 562, 237 N.W.2d 383, 28 W.C.D. 225 (1975).
Substantial evidence supports the compensation judge’s decision that, as of the date of the hearing, the employee had continuing restrictions on his ability to work. The decision of the compensation judge is, therefore, affirmed.
 An administrative conference “is a meeting conducted by the commissioner’s designee where the parties can discuss on an expedited basis and in an informal setting their viewpoints concerning disputed issues arising under section . . . 176.239.” Minn. Stat. § 176.011, subd. 1a.