CAROL A. STEVENS-STEVENSON, Employee, v. GREATER LAKE COUNTRY FOOD and MINNESOTA ASIGNED RISK PLAN/RTW GROUP, Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 18, 2012
No. WC 12-5366
PRACTICE & PROCEDURE - MATTERS AT ISSUE; JURISDICTION - SUBJECT MATTER. Contrary to the position of the employer and insurer, the compensation judge has jurisdiction to consider claims for treatment of a consequential injury at an expedited hearing on a medical request - - it was not necessary for the employee to file a claim petition to pursue that claim. However, the employer and insurer were entitled to reasonable notice of the nature of the claim. As such, a remand was ordered to allow the employer and insurer the opportunity to arrange an independent medical examination.
Vacated and remanded.
Determined by: Debra A. Wilson, J., David A. Stofferahn, J., and Thomas L. Johnson, J.
Compensation Judge: John Ellefson
Attorneys: Thomas A. Klint and Andrew J. Hippert, Babcock, Neilson, Mannella, LaFleur & Klint, Anoka, MN, for the Respondent. Donald G. Fernstrom and Noelle L. Schubert, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Appellants.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the judge’s award of medical expenses. We vacate the judge’s decision and remand the matter for further proceedings consistent with this opinion.
The employee sustained three work-related injuries in the course and scope of her employment with Greater Lake Country Food [the employer]: a 1996 right shoulder injury; a 1997 right ankle injury; and a 1998 cervical injury. The matter has been the subject of litigation several times over the years. The current proceedings were commenced in May 2011, when the employee filed a medical request for payment or approval of recommended cervical and lumbar MRI scans and for treatment rendered by Bellin Health System and Neurology Consultants. In the blank on the medical request form following “Part[s] of body injured,” the employee listed “right shoulder, right upper extremity, right ankle, neck, headaches, and chronic pain.” The request further specified that the bills from Bellin Health System and Neurology Consultants had been paid “by the employee’s Medicare Insurance.” The attached medical records included an MRI order form, which indicated that the employee had right hand pain and numbness “shooting down legs.” Attached physical therapy reports document chronic neck pain, bilateral hip pain, and decreased lumbar and hip range of motion.
The employer and insurer filed a medical response on May 20, 2011, declining to pay for the claimed treatment expenses. As explanation for their refusal, the employer and insurer indicated that there was nothing establishing that the MRI request had been made by a physician, that there were no narrative reports concerning the need for the proposed MRIs, and that the MRI request did not satisfy the requirements for repeat imaging specified in Minn. R. 5221.6100 of the medical treatment parameters.
On August 1, 2011, an administrative conference pursuant to Minn. Stat. § 176.106, was held by a mediator/arbitrator for the Department of Labor and Industry. According to the decision and order issued following the conference, the parties had agreed that the issue was whether the cervical and lumbar MRI scans “are reasonable and medically necessary to cure and relieve the employee of the effects of her work injuries.” It was also agreed that the other listed bills would not be considered at that time. The arbitrator/mediator ultimately denied the medical request based on his conclusion that inadequate documentation had been submitted to establish that the employee needed the requested MRI scans as a result of one or more of her work injuries.
The employee filed a request for formal hearing “to further resolve this matter,” and a hearing was held before a compensation judge on October 31, 2011. At the beginning of that hearing, counsel for the employer and insurer indicated that the employer and insurer had agreed to pay for the requested treatment of the employee’s cervical spine and upper extremities. Counsel then alleged that the compensation judge lacked jurisdiction to determine the employee’s entitlement to the other claimed treatment, in that the employer and insurer had never admitted liability for lumbar spine or hip injuries. Evidence submitted at hearing included certain medical records and reports, decisions issued in earlier litigation, and stipulations for settlement.
In a decision issued on November 22, 2011, the compensation judge concluded in part that the employer and insurer were liable for the “lumbar MRI and the medical treatment for the condition causing pain in [the employee’s] leg and hip.” The employer and insurer appeal.
STANDARD OF REVIEW
“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.” Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).
Relying in part on a medical report issued on August 24, 2011, the compensation judge concluded that the employee’s admitted ankle injury had caused her to alter her gait, resulting in “chronic pain in the employee’s legs and hips.” The claimed medical expenses were awarded on that basis. On appeal, the employer and insurer again contend that the compensation judge lacked jurisdiction to consider these claims. We are not persuaded.
During the hearing, counsel for the employer and insurer contended that the judge lacked jurisdiction over the claim for low back, hip, and lower extremity treatment because “there has never been an admission of lumbar spine injury or bilateral hip injury.” As such, counsel indicated, he was taking the “position that a consequential injury would have to be filed under a claim petition and that the employer and insurer [should have] the opportunity to have an independent medical examination to address the causal connection and the reasonableness and necessity of the treatment for the lumbar spine and bilateral hips.” At the close of the hearing, counsel reiterated this argument, further maintaining that the judge could not make any determination as to causation of the employee’s lumbar spine or bilateral hip condition because “a hundred and twenty days has not even passed” since the narrative causation report was issued by the employee’s physician on August 24, 2011.
It appears to us that the employer and insurer’s argument on this issue is based on a fundamental misunderstanding as to the nature of the employee’s claim. A claim that a work injury has produced or contributed to a condition in a different body part than the original injury - - what is commonly referred to as a consequential injury - - raises issues of causation, not primary liability. That is, a “consequential injury” is not a separate injury that must be pleaded by claim petition, and the 120-day limit for obtaining an independent medical opinion has no relevance. See Minn. Stat. § 176.155, subd. 1.
In their brief on appeal, the employer and insurer shifted their argument somewhat, contending now that the compensation judge improperly “expanded the issues,” in contravention of Minn. R. 1420.2150, subp. 2.C., which provides that a “hearing on a request for formal hearing is limited to the issues raised on the medical or rehabilitation request or response.” Pursuant to subp. 3 of the rule, “[e]xpansion of the issues in an expedited proceeding will be allowed upon agreement of the parties,” but the employer and insurer contend that there was no such agreement here. We note, however, that the employer and insurer did not make this particular argument at the hearing before the compensation judge. Moreover, in that the reasonableness and necessity of treatment for the employee’s low back and hip was THE issue in controversy, it is a stretch at best for the employer and insurer to claim that the question of causation of the employee’s need for that treatment was not properly before the compensation judge. However, while we reject the employer and insurer’s arguments based on the rules, we nevertheless conclude that the judge’s decision should be vacated.
As previously noted, the compensation judge relied in part on the August 24, 2011, narrative opinion of one of the employee’s treating physicians. As the employer and insurer pointed out to the compensation judge, that report was generated after the administrative conference in response to the mediator/arbitrator’s denial of the employee’s claims. The employer and insurer also contended to the judge that they had no notice of the basis of the employee’s claim until that report, which was issued only about two months prior to hearing. The employer and insurer further indicated to the judge that they wanted to schedule an independent medical examination to address that claim. The compensation judge did not explicitly respond to that request, either at hearing or in his decision.
Claims for consequential injuries can be complex, and reasonable notice and opportunity to be heard must be afforded before decisions as to benefit entitlement can be made. See Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988). See also Minn. Stat. § 176.155, subd. 1 (an employee must submit to an examination by the employer’s physician at “reasonable times” after an injury). Under the particular circumstances of this case, we conclude that the employer and insurer should have been allowed the opportunity to have the employee examined by a physician of their choosing. We therefore vacate the judge’s decision and remand the matter for additional proceedings. Following the examination and the issuance of a report, the compensation judge should reconsider the employee’s claim and issue new findings. The parties may ask the judge to set time limits applicable to the submission of a report, and the judge may also allow the employee, on request, the opportunity to respond to the employer and insurer’s expert.
 The compensation judge concluded that he had jurisdiction to issue a decision pursuant to Minn. Stat. § 176.106, subd. 9, which provides as follows:
Subd. 9. Subsequent causation issues. If initial liability for an injury has been admitted or established and an issue subsequently arises regarding causation between the employee’s condition and the work injury, the commissioner may make the subsequent causation determination subject to de novo hearing by a compensation judge with a right to review by the court of appeals, as provided in this chapter.
On appeal, the employer and insurer argue that Minn. Stat § 176.106, subd 9, is beside the point. We agree. This provision deals with the authority of the commissioner and simply clarifies that causation determinations are different than primary liability determinations, which the commissioner may not make except in limited circumstances. Minn. Stat. § 176.106, subd. 8.