HONORIO PEREZ, Employee/Cross-Appellant, v. UP NORTH PLASTICS, INC., SELF-INSURED/BHK&R, INC., Employer/Appellant, and MEDICAL ADVANCED PAIN SPECIALISTS and MINNEAPOLIS CLINIC OF NEUROLOGY, LTD., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 15, 2000

                                                                             

HEADNOTES

 

TEMPORARY TOTAL DISABILITY - TERMINATION OF EMPLOYMENT.  Where the compensation judge found that the effects of the admitted work injury were not temporary, the employee is entitled to temporary total disability benefits following his termination so long as he performed a diligent job search and was under work restrictions as a result of the injury.

 

PERMANENT PARTIAL DISABILITY.  Where the employee=s permanent partial disability rating required persistent objective clinical findings and the compensation judge found that the employee was likely to make significant improvement in his condition with appropriate treatment, it was premature to rate the employee=s injury under this rating.

 

MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE.  Where the employee=s physician indicated that he would benefit from further treatment, the compensation judge was supported by substantial evidence in finding that maximum medical improvement could not be determined until after the treatment had been provided.

 

MEDICAL TREATMENT & EXPENSE - CHANGE OF PHYSICIAN; RULES CONSTRUED - MINN. R. 5221.0430. Where the employer has initially admitted liability but later denies liability based on its position that the injury was only a temporary aggravation of a preexisting condition, there is no need for the employee to obtain prior approval under Minn. R. 5221.0430 before engaging the services of a different physician.

 

Affirmed in part and reversed in part.

 

Determined by Wheeler, C.J., Johnson, J., and Rykken, J.

Compensation Judge:  Joan G. Hallock

 

 

OPINION

 

STEVEN D. WHEELER, Judge

 

The self-insured employer appeals from the compensation judge=s determination that the employee had not yet reached maximum medical improvement from his September 14, 1996 work injury and from the award of a 10% permanent partial disability rating.^[1]  The employee appeals from the compensation judge=s denial of temporary total disability benefits from April 5 through May 3, 1997, and the failure to award payment of medical expenses to several healthcare providers.  We affirm the maximum medical improvement finding, but reverse each of the other determinations.

 

BACKGROUND

 

The employee commenced work for the employer, Up North Plastics, Inc., as a machine operator on June 20, 1996.  On September 14, 1996, the employee sustained an admitted injury to his low back while pulling on a large roll of plastic.  On the date of injury, the employee was 26 years of age and had a weekly wage of $450.42.  The employee is unable to read or write English and has difficulty reading or writing in Spanish, his native language.  He completed the sixth grade in Mexico.  Prior to working for the employer, he worked in the fields and in the construction industry.

 

Immediately following the injury, the employee went to the emergency room and missed one day of work.  The employee was then referred by the employer to United Occupational Health for treatment.  From September 16, 1996 through February 27, 1997, the employee was treated by several doctors who issued a series of restrictions, primarily restricting his ability to work.  (Resp. Ex. 4.)  During this period, the employee was provided with light duty work by the self-insured employer.

 

On November 27, 1996, a lumbar MRI was completed.  This showed a small non-lateralizing broad-based disc protrusion at spinal level L5-S1, a partial thickness annular tear and accentuated annular bulging posteriorly at spinal level L4-5, and Adiscogenic juvenile disease/Scheuermann=s.@  A thoracic spine MRI showed scattered schmorl=s node indentation and mild disc degenerative changes at multiple thoracic interspaces.  (Pet. Ex. C.)

 

On December 5, 1996, in a letter to the employer, Dr. Lilly Ramphal indicated that the employee had a small herniation centrally located over the L4-5 level.  On December 19, upon examination she found decreased range of motion, positive straight leg raising and subjective complaints of pain.  She indicated that there was no evidence of a preexisting condition and determined that the employee=s symptoms were work-related.  She stated that the employee would likely reach MMI on February 15, 1997.  (Resp. Ex. 4.)

 

The employee was examined by Dr. Clarence Henke on January 21, 1997.  At that time, Dr. Henke also found a limitation of the employee=s range of motion in his low back, positive straight leg raising and continued complaints of pain.  Waddell=s signs, administered to test symptom magnification, were negative.  He diagnosed lumbar radiculopathy, which he found to be work-related.  He referred the employee to Dr. Mary Dunn, a neurosurgeon, for a surgical consultation.  Dr. Dunn saw the employee on January 29, 1997.  Her diagnosis was chronic low back pain, Asecondary to multiple repeated injuries to the lumbar spine . . . .@  She stated that the employee=s multi-level degenerative disc disease and bulging and herniated discs Arepresent[ed] repeated long-standing stress to the low back such as he probably experienced with his construction work in Texas.@  (Resp. Ex. 5.)

 

On January 31, 1997, Dr. Henke diagnosed the employee=s condition as intervertebral disc disease and Scheuermann=s Disease.  He stated that the employee=s then current condition was caused by an aggravation of his underlying and preexisting condition.  (Resp. Ex. 4.)  On February 27, 1997, Dr. Henke stated that the employee had reached maximum medical improvement with no permanent partial disability.  On that date he stated that the employee=s Acurrent@ diagnosis was Scheuermann=s Disease, which he found to be Anonwork-related.@  He found that the employee was able to lift and carry up to fifty pounds occasionally and twenty pounds frequently.  In his report of workability, Dr. Henke stated that the employee should return to the clinic A[a]s needed, or if any problems.@  However, in his February 27, 1997 letter to the employer, he stated that the employee Adoes not need to return to the clinic for evaluation.@  This report was served on the employee on April 4, 1997.  (Resp. Exs. 2, 4.)

 

Following the September 14, 1996 injury, the employee returned to work at light duty, based on restrictions from the physicians at United Occupational Health.  The employee was apparently not able to work full time and eventually received temporary partial disability benefits for various periods of time from the date of injury until he was terminated from the employer=s service on April 4, 1997.  The employee was fired because he had received three citations for violation of company and safety rules during March 1997.

 

Following his termination by the employer, the employee began looking for work immediately.  Within a month, he found work at a McDonald=s restaurant, where he did cleaning.  Thereafter he changed to another McDonald=s location and performed a number of jobs, including cooking.  More recently, in the fall of 1999, the employee found work at Dixie=s Smokehouse, where he makes salads.  (Unappealed Finding 16.)  At the time of the hearing, the employee was working at Dixie=s approximately thirty-five to forty hours per week, five to six days per week, at a salary of $9.50 per hour.  (T. 47.)

 

Following his release from treatment by Dr. Henke on February 27, 1997, the record contains no evidence that the employee received medical treatment until he was referred by his attorney to Dr. Rafael Magana, a neurologist with the Minneapolis Clinic of Neurology, in May 1998.^[2]  The employee was first seen by Dr. Magana on June 1, 1998.  Dr. Magana found restricted range of motion in the low back and tenderness along the lumbar paraspinal muscles.  The employee was referred to the physical therapy department at Abbott Northwestern Hospital, where he received exercise treatment from June 3 through July 1, 1998.  The employee returned to Dr. Magana on August 20, 1998, and indicated that the exercise program had not been particularly helpful.  He complained of pain Amainly in the sacrococcygeal area.@  This pain radiated into his leg after standing too long or in cold weather.  On examination, Dr. Magana indicated that he found that the employee=s low back mobility Acontinued to be restricted mainly in extension.@  He also found Amild muscle spasm in the lumbar paraspinals.@  The employee was advised to continue his exercise program and was given samples of Relafen, a muscle relaxant. 

 

The employee was again seen by Dr. Magana on October 1, 1998.  At that time, the employee indicated that he had recently had a severe onset of low back pain, lasting approximately three days.  At the time of the examination, the employee indicated that his low back pain occasionally radiated into the sacrococcygeal area but not into the legs.  On examination, Dr. Magana found that the employee=s low back mobility continued to be restricted in extension and also, to some degree, in flexion.  The employee was referred to Medical Advanced Pain Specialists for treatment.  He was advised to continue his exercise program and was given a prescription for Naprosyn, an anti-inflammatory medication.

 

On October 8, 1998, the employee was seen by Dr. Lon Lutz.  On that occasion he received trigger point injections to two areas of his low back.  (Pet. Ex. B.)  The employee returned to see Dr. Magana on November 6, 1998.  He reported that he had received relief from the trigger point injections.  At the time of the examination, however, the effects of the injections had subsided and the employee was complaining of low back pain and occasional muscle spasm.  He denied any numbness or tingling in his legs.  On examination, Dr. Magana found Alow back mobility continues to be restricted mainly in extension and side bends.  There is mild tenderness along the lumbar paraspinals with slightly increased tone.@  The employee was advised to continue his exercise program and was given samples of Relafen.  In his progress note of November 6, 1998, Dr. Magana indicated that the employee had a permanent partial disability rating of 3.5% of the body as a whole.  In these notes, he also stated as follows:

 

Mr. Perez is seen in followup today for post-traumatic low back pain.  When last seen, he was referred to Dr. Lutz for trigger point injections to be followed by a supervised exercise program.  Unfortunately, he received the first set of trigger point injections which helped, but he could not follow through with the treatment because he could not afford to pay for this out of his own pocket and the insurance company will not cover it and the physician will not extend service without payment.  It is the same situation with the medications since he cannot afford to buy the medications and his insurance will not pay for them. 

 

We are at the point that unfortunately there is no sense for him to keep coming to me since we cannot follow through with any treatment. . . .

 

There is no evidence in the record which indicates that the employee received any medical treatment from any healthcare provider from November 6, 1998 until the date of hearing on January 19, 2000.  (Pet. Ex. A.)

 

On January 6, 1999, Dr. Magana issued a letter report in which he reviewed the treatment of the employee from June 1 through November 6, 1998.  He modified his permanent partial disability rating to increase it to 7% of the whole body.  In addition, he stated that the employee could work with limitations which included Ano lifting of more than 50 pounds above shoulder level, no standing for long periods of time, no pulling or pushing of more than 50 pounds, and no constant forward bending.  He should have breaks of at least 5 to 10 minutes every two hours.@  It was Dr. Magana=s opinion that the employee=s condition was causally related to the injury of ASeptember 16, 1996@ [sic].  He also stated that the employee=s Atreatment to the present time has been related to the current injury@ of September 1996.  Dr. Magana issued an addendum to his January 1999 report in a letter dated January 19, 2000.  In that letter he stated that the employee=s permanent partial disability rating should be 10% pursuant to the disability schedules at Minn. R. 5223.0390, subp. 3C(2), based on clinical objective findings, together with multiple vertebral level abnormalities as shown by MRI testing.

 

On May 3, 1999, the employee was examined, at the request of the self-insured employer, by Dr. Mark E. Friedland.  At that time, Dr. Friedland was unable to find any limitations on the employee=s range of motion or any muscle spasm in the lumbar or thoracic regions.  He stated that the employee had a zero percent permanent partial disability pursuant to Minn. R. 5223.0390, subp. 3A.  He indicated that the employee=s primary difficulty was that of a juvenile discogenic disease, commonly referred to a Scheuermann=s Disease.  He stated that in September of 1996 the employee may have sustained a temporary aggravation of his juvenile discogenic disease in the nature of a strain/sprain.  He indicated that the employee=s complaints of pain involve significant functional overlay as his examination indicated positive results on Waddell=s testing.  He stated that he agreed with Dr. Henke=s assessment that the employee had reached maximum medical improvement from the temporary aggravation caused by the September 1996 work injury by February 27, 1997, and that all care for the employee after that date was not related to the September 1996 injury, but was due to the problems caused by the underlying juvenile discogenic disease.  Dr. Friedland opined that the employee should work under restrictions of only lifting up to seventy-five pounds occasionally and fifty pounds frequently, but that these restrictions were solely necessitated by the employee=s Scheuermann=s Disease.  He further indicated that the care and treatment provided by Dr. Magana after June 1, 1998 was related to problems associated with the employee=s juvenile discogenic disease and was not related to the effects of the September 14, 1996 injury.  He stated that the treatment prescribed by Dr. Magana was reasonable to treat the chronic condition, although it was of limited value.  (Resp. Ex. 1.)

 

The employee filed a claim petition on February 4, 1999, in which he sought temporary total disability benefits from April 5, 1997 through May 3, 1997, temporary partial disability benefits from September 15, 1996 for various periods to date and continuing, permanent partial disability benefits for a 7% whole body rating, and payment of medical expenses for the Minneapolis Clinic of Neurology, Abbott Northwestern Hospital, and Medical Advance Pain Specialists.  In its answer, filed February 25, 1999, the self-insured employer stated, AThat the nature of any injury sustained on September 14, 1996, was at best a lumbar strain from which the Employee has fully recovered without any residual disability or work limitations.@  (Answer at & IV.)  The self-insured employer further alleged as follows:

 

Deny that Employee is disabled as alleged in his Claim Petition; that said alleged disability is not the result of any work-related injury allegedly occurring as claimed in the Claim Petition or during any period of time during which he may have worked for Up North Plastics; that any disability claimed by the Employee is the result of non work-related injuries, conditions, or factors.

 

(Answer & V.)  Apparently at a settlement conference, the employer agreed to pay temporary  partial disability benefits through the last date of work for the employer, April 3, 1997.  The employee amended his request for permanent partial disability to 10% of the whole body, based on Dr. Magana=s January 19, 2000 report. 

 

The matter came on for hearing before a compensation judge on January 19, 2000.  In Findings and Order issued by the compensation judge on March 8, 2000, she found that the effects of the September 14, 1996 work injury had not subsided by February 27, 1997, and that it was reasonable to believe that the employee could improve his condition if appropriate medical treatment, as recommended by Dr. Magana, was provided.  As a result, she found that the employee had not reached maximum medical improvement as of the date of the hearing.  She further found that the employee was not entitled to temporary total disability benefits from April 5 until May 3, 1997, but was entitled to the temporary partial disability benefits from May 3, 1997 through the date of hearing and continuing.  The compensation judge determined that the employee had sustained a permanent partial disability as a result of the injury of September 14, 1996 in the amount of 10% of the whole body pursuant to Minn. R. 5223.0390, subp. 3C(2).  In addition, the compensation judge stated that the change of physicians to Dr. Magana on June 1, 1998 was not appropriate in that it had not been approved or authorized pursuant to Minn. R. 5221.0430.  As a result, she determined that the medical expenses related to treatment by Dr. Magana (Minneapolis Clinic of Neurology) or the physical therapy treatment recommended by him at Abbott Northwestern Hospital and the trigger point injections by Dr. Lutz of Medical Advanced Pain Specialists, need not be paid for by the self-insured employer, citing Minn. R. 5221.0430, subp. 3.  The self-insured employer appeals from the finding that maximum medical improvement has not occurred and from the award permanent partial disability benefits.  The employee appeals from the denial of temporary total disability benefits and medical treatment expenses after June 1, 1998.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey 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).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Id.

 

DECISION

 

Temporary Total Disability

 

The employee appeals from the compensation judge=s determination denying his claim for temporary total disability for the period from April 5, 1997 through May 3, 1997.  In her Findings and Order, the compensation judge stated that Athe employee is not entitled to temporary total disability benefits,@ apparently because A[t]he employer terminated the employee for safety and work violations which were clearly spelled out in documents which the employee signed.  The employee=s termination was not related to his work injury.@  (Finding 23.)  In her memorandum, the judge made the following comments:

 

The self-insured employer also argues that the employee=s violation of work and safety rules, leading to his termination, bars the employee from receipt of temporary total and temporary partial disability benefits.  The Compensation Judge agrees that the employee was terminated for reasons unrelated to his work injury.  Therefore, the employee is not entitled to temporary total disability benefits for the period claims.  These violations, however, do not rise to the level of Amisconduct@ and no such allegation has been leveled at the employee.

 

(Memorandum at p. 6.)

 

In response to the employee=s appeal, the self-insured employer agrees that it is not contending that the employee is disqualified from receiving temporary total disability as a result of having been terminated for misconduct.  It is not their contention that the denial of temporary total disability should be predicated on the Amisconduct@ provision of Minn. Stat. ' 176.101, subd. 1(e)(1).  The self-insured employer=s position is essentially based on Minn. Stat. ' 176.101, subd. 1(h), which states that, ATemporary total disability compensation shall cease if an employee has been released to work without any physical restrictions caused by the work injury.@  At trial and in its brief, the employer contends that, based on Dr. Henke=s February 27, 1996 report and Dr. Friedland=s May 3, 1999 report, there is no basis to believe that the effects of the September 14, 1996 temporary aggravation of the employee=s preexisting condition caused any disability or need for physical restrictions after February 27, 1996.  As a result, since the employee=s period of unemployment was after the effects of the 1996 injury had subsided, it could have no liability for any wage loss benefits.  In addition, the self-insured employer points out that the real reason that the employee was unemployed was because of his inappropriate actions, which caused him to be terminated.  They argue, by inference, that had the employee not violated safety and other rules he would have continued to have been employed in light duty work for the employer and therefore would not have sustained a total wage loss.

 

AA person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in an insubstantial income.@  Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967).  AWhere the employee is found medically able to return to work without restrictions, having suffered no residual disability from his work injury,@ there is no basis for payment of temporary wage benefits or rehabilitation services after that date.  Kautz v. Setterlin Co., 410 N.W.2d 843, 845, 40 W.C.D. 206, 208 (Minn. 1987).  In addition, in cases involving claims for temporary total disability following termination of employment the following rule would apply:

 

[A] justifiable discharge for misconduct suspends an injured employee=s right to wage loss benefits; but the suspension of entitlement to wage loss benefits will be lifted once it has become demonstrable that the employee=s work-related disability is the cause of the employee=s inability to find or hold new employment.  Such a determination should be made upon consideration of the totality of the circumstances including the usual work search requirements.

 

Marsolek v. George A. Hormel Co., 438 N.W.2d 922, 924, 41 W.C.D. 964, 968 (Minn. 1989); see, e.g., Johnson v. State, Dep=t of Veterans Affairs, 400 N.W.2d 729, 731-32, 39 W.C.D. 367, 370-71 (Minn. 1987) (temporary benefits awarded to employee who quit job for nondisability reasons, for unemployment after reasonably diligent job search, and presented evidence as to causal relationship between a wage loss and disability).

 

The issue before the compensation judge was whether there was a causal relationship between the employee=s September 1996 work injury and his unemployment during the period from April 5, 1997 and May 3, 1997.  The self-insured employer contended that its medical experts supported the proposition that the employee had no physical restrictions or disability associated with his September 1996 work injury, claiming that all of his restrictions were related solely to his underlying juvenile discogenic disease, Scheuermann=s Disease.  The compensation judge rejected this position based on the opinion of Dr. Magana, and found that the injury of September 1996 was a permanent aggravation of the employee=s underlying Scheuermann=s Disease.  The judge thus determined that the self-insured employer=s position was not supported by a preponderance of the evidence and that the effects of the September 1996 injury were a substantial contributing cause to the employee=s restrictions during the period of temporary total disability claimed.  In an unappealed finding, the compensation judge indicated that the employee began to look for work immediately after his termination and found work within one month.  This finding satisfies the requirement that the employee had engaged in a reasonably diligent job search and was thus entitled to temporary total disability benefits during this period.  As the judge=s factual determinations regarding causation and diligent job search are supported by substantial evidence or were not appealed, we reverse the compensation judge=s denial of temporary total disability.

 

Maximum Medical Improvement

 

The self-insured employer appeals from the compensation judge=s determination that the employee had not reached maximum medical improvement as of either April 4, 1997, when Dr. Henke=s February 27, 1997 report was served on the employee, or shortly after May 3, 1999, with the issuance of Dr. Friedland=s report.  The compensation judge stated as follows:

 

[T]he employee has not yet reached MMI.  Dr. Magana indicated there was nothing more to do for the employee only because the employee could not financially afford to follow through on the doctor=s recommendations.  There are treatments which have been recommended that could improve the employee=s condition.

 

(Finding 25.)  In her memorandum, the compensation judge made the following observation:

 

After considering the employee=s medical condition and the other evidence of record, it would appear that Dr. Magana has a course of treatment in mind for the employee which could improve his medical condition.  This will benefit both the employee and self-insured employer because the treatment could provide lasting significant improvement for the employee=s condition and allow him to return to his pre-injury wage.

 

(Memorandum at p. 7.)

 

The compensation judge=s findings appear to be based on the statements contained in Dr. Magana=s November 6, 1998 report wherein he stated as follows:

 

Mr. Perez is seen in followup today for post-traumatic low back pain. When last seen, he was referred to Dr. Lutz for trigger point injections to be followed by a supervised exercise program.  Unfortunately, he received the first set of trigger point injections which helped, but he could not follow through with the treatment because he could not afford to pay for this out of his own pocket and the insurance company will not cover it and the physician will not extend service without payment.

 

In addition, Dr. Magana stated that, AWe are at the point that unfortunately there is no sense for him to keep coming to me since we cannot follow through with any treatment.@  (Pet. Ex. A, report of 11/6/98.)

 

Maximum medical improvement is defined as Athe date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability, irrespective and regardless of subjective complaints of pain.@  Minn. Stat. ' 176.011, subd. 25.  Whether MMI has been reached is a question of ultimate fact for the compensation judge to determine.  Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528-29, 41 W.C.D. 634, 639 (Minn. 1989).  The burden of proving that maximum medical improvement has occurred is normally on the employer and insurer.  Burns v. Firestone Tire & Rubber, slip op. (W.C.C.A. June 29, 1993).  Maximum medical improvement Aoccurs upon medical proof that the employee=s condition has stabilized and will likely show little further improvement.@  Polski v. Consolidated Freightways, 39 W.C.D. 740, 742 (W.C.C.A. 1987).

 

The issue before this court is whether the conclusion reached by the compensation judge with respect to whether the employee had reached maximum medical improvement from the injuries suffered on September 14, 1996, is supported by substantial evidence and is not clearly erroneous.  The self-insured employer, relying on Dr. Henke and Dr. Friedland=s reports, contends that the employee had reached maximum medical improvement on February 27, 1997, because the employee sustained a minor strain/sprain injury which was a temporary aggravation of his underlying juvenile discogenic disease.  Dr. Magana disagreed with this evaluation.  The compensation judge accepted Dr. Magana=s opinion that the effects of the aggravation of the underlying condition extended at least until the latter part of 1998.  Based on Dr. Magana=s November 6, 1998 progress notes, we do not find it unreasonable for the compensation judge to have concluded that additional treatment would be likely to provide significant improvement to the employee.  As a result, we cannot fault the compensation judge=s choice of accepting the opinion of Dr. Magana over those of Drs. Henke and Friedland.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The compensation judge=s determination that the employee has not reached maximum medical improvement is affirmed.

 

Permanent Partial Disability

 

The compensation judge determined that the employee had sustained a 10% permanent partial disability of the whole body as a result of the injury sustained on September 14, 1996.  She did so pursuant to the disability rating found in Minn. R. 5223.0390, subp. 3C(2).  This rule provides as follows:

 

Subp. 3.  Lumbar pain syndrome.

* * *

C. Symptoms of pain or stiffness in the region of the lumbar spine, substantiated by persistent objective clinical findings, that is, involuntary muscle tightness in the paralumbar muscles or decreased range of motion in the lumbar spine, and with any radiographic, myelographic, CT scan, or MRI scan abnormality not specifically addressed elsewhere in this part:

* * *

(2) multiple vertebral levels, ten percent.

 

The compensation judge found that the employee Ahas decreased range of motion and muscle spasm on exam, and the MRI showed abnormalities and [sic] more than one vertebral level.@  She specifically stated that she accepted Dr. Magana=s January 19, 2000 opinion with respect to the level of the employee=s permanent partial disability.  (Finding 24.)

 

On appeal, the self-insured employer states that a finding of permanent partial disability is premature in this case, given the compensation judge=s determination that the employee has not reached maximum medical improvement and her statements that it is probable that the employee will gain Alasting significant improvement@ from the treatments contemplated by Dr. Magana.  We disagree with the self-insured employer=s argument that a permanent partial disability rating cannot be issued prior to reaching maximum medical improvement.  (See Minn. Stat. ' 176.101, subd. 2a(b), and Minn. R. 5221.0410, subp. 4.)  Under the circumstances of this case,however, given the compensation judge=s determination regarding the likelihood of substantial improvement, and that the requirements of Minn. R. 5223.0390, subp. 2C, require persistent objective clinical findings, we agree that a permanent partial disability rating under this rule would be premature.  If the significant improvement contemplated by the compensation judge would correct the objective clinical findings, the employee would not be entitled to a permanent partial disability rating under this part of the disability schedule.  We therefore reverse the compensation judge=s award of permanent partial disability.  Our action, however, does not preclude the employee from making a claim for permanent partial disability after he has completed the medical treatments appropriate for his condition.

 

Medical Expenses

 

The compensation judge determined that the employee=s change of physician from Dr. Henke to Dr. Magana was not authorized under Minn. R. 5221.0430.^[3]  She stated that as a result of the treatment by Dr. Magana, and those to whom Dr. Magana referred the employee, payment could not be awarded because the treatment was rendered before a change in physician was approved.  This finding was made pursuant to her interpretation of Minn. R. 5221.0430, subp. 3.  (Findings 26, 28.)

 

On appeal, the employee contends that the medical expenses related to treatment by Dr. Magana (Minneapolis Clinic of Neurology), by Dr. Lon Lutz (Medical Advanced Pain Specialists) and by the physical therapy department at Abbott Northwestern Hospital should have been approved for either of two reasons:  (1) the compensation judge=s determination that Dr. Magana had provided reasonable and necessary care to the employee, implicit in the approval of his opinions, constitutes an approval of the change of physicians as of the first date Dr. Magana treated the employee; and (2) the provisions of Minn. R. 5221.0430 do not apply because the self-insured employer had denied liability for any continuing benefits as of February 27, 1997, based on Dr. Henke=s report, or, at the latest, April 3, 1997, when the employee was terminated.

 

The self-insured employer argues that the compensation judge never found that the medical treatment was reasonable and necessary and thus this court cannot make the compensation judge=s approval of Dr. Magana as of the date of hearing retroactive to the date of first treatment.  The self-insured employer also argues that it had accepted primary liability shortly after the incident and did not formally deny liability thereafter.  It claims that the decisions cited by the employee do not apply under these circumstances.  (ER brief at pp. 10-13.) The employer contends that the facts in this case indicate that the employee was Adoctor shopping@ because he was referred to Dr. Magana by his attorney, primarily for the purposes of evaluation and not for treatment.  The self-insured employer argues that Dr. Magana=s role was to facilitate the employee=s claim for permanent partial disability benefits, as exhibited by his issuance of three different PPD ratings.

 

This court has on many occasions in the past determined that under Minn. R. 5221.0430, subp. 3, and Minn. Stat. ' 176.135, subds. 1, 2, the employer is not necessarily relieved from liability for treatment rendered prior to approval of the employee=s request to change physicians if the disputed treatment is otherwise reasonable and necessary to cure and relieve the employee from the effects of the work injury.  Henschel v. Interfaith Social Servs. slip op. (W.C.C.A. Oct. 2, 1995); Klein v. Fingerhut, slip op. (W.C.C.A. Dec. 11, 1995); Roland v. Search Resources, slip op. (W.C.C.A. Nov. 23, 1998.) 

 

In this case, we infer that the compensation judge has determined that the services provides by Dr. Magana, Abbott Northwestern and Dr. Lutz were reasonable and necessary, and denied them only because they had not been preapproved.  We believe her determination of reasonableness and necessity can be inferred because of the manner in which she adopted the findings and opinions of Dr. Magana and relied on the success of the treatment by Dr. Lutz.  In her findings, she stated that the change to Dr. Magana Ais in the best interests of the employee and the employer as the additional treatment by Dr. Magana may allow the employee to return to his preinjury wage.@  (Finding 27.)  Because we infer a finding of reasonableness and necessity, and determine it is supported by substantial evidence, we need not remand this matter and find that the services by Dr. Magana, and his referrals, should be approved for payment based on the reasoning in the decisions cited above.

 

In addition, the provisions of Minn. R. 5221.0430 do not apply to restrict the employee=s change of physicians to Dr. Magana.  This court has also held that after an employer and insurer have denied liability for medical or other workers= compensation benefits, the rules concerning requiring prior approval of physicians do not apply.  Dawson v. University of Minn., slip op. (W.C.C.A. May 6, 1999).  While Dawson involved a case where primary liability was denied from the outset of the employee=s claim, the principle set forth in that decision applies equally in cases where liability was initially admitted but subsequently denied.