GENE N. SCHEIDT, Employee/Appellant, v. INDEPENDENT SCHOOL DIST. #518 and AMERICAN COMPENSATION INS. CO./RTW, INC., Employer-Insurer, and BLUE CROSS BLUE SHIELD OF MINN., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 5, 2000

 

HEADNOTES

 

PRACTICE & PROCEDURE - MATTERS AT ISSUE.  The compensation judge committed clear error by determining an issue that was not disputed by the parties, and the case must be remanded for redetermination.

 

Reversed and remanded.

 

Determined by: Johnson, J., Wheeler, C.J., and Wilson, J.

Compensation Judge: Bonnie A. Peterson

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s finding that he did not sustain a low back injury on November 4, 1997, and the judge=s denial of payment for certain medical expenses.  We reverse the finding that the employee did not sustain a personal injury and remand the case for further findings on the compensability of the claimed medical expenses.

 

BACKGROUND

 

Gene N. Scheidt, the employee, began working for Independent School District #518, the employer, in 1989.  Initially, the employee worked as a custodian and in 1994 became an outside groundskeeper.  His duties consisted of general clean up in the school building, removing snow, cutting grass, hauling garbage and general maintenance duties.  The employee worked both inside and outside the school building.  (T. 42-43.) 

 

In 1975, the employee injured his low back when he fell about 12 feet from a ladder while working for Carr Construction.  (T. 44.)  In 1987, the employee injured his back a second time when he tipped over a truck while working for Cargill. (T. 49-50.)  In January of 1995, while working for the employer, the employee injured his low back and was hospitalized.  (T. 50-51.)  The employee saw L.T. Donovan, D.O., who diagnosed pre-existing spondylolysis and an acute lumbar myofascial strain.  The doctor prescribed physical therapy.  By May 15, 1995, Dr. Donovan concluded the lumbar strain had resolved and released the employee to normal work duties.  (Pet. Ex. A-1.)  The employee injured his right hand on October 24, 1997, while working for the employer.  Dr. Donovan diagnosed a contusion injury and placed the employee=s hand in a short-arm splint.  He was released to return to work on October 31, 1997 with his right arm in a sling.  (Pet. Ex. A-1.)  The employee was restricted from lifting over 10 pounds with his right hand with no prolonged heavy pulling, pushing, grasping or gripping. (Pet. Ex. A-1; T. 52-53; 78-79.)

 

The employee returned to work for the employer on November 3, 1997.  The employee testified he did a lot of lifting with his left arm that day in the process of moving bleachers and rolling up mats, together with his other regular duties.  During the day, he testified his low back began to hurt.  By the evening of November 3, 1997, the employee testified he had a lot of pain in his back and used a heating pad but was unable to sleep much.  The employee returned to work on November 4, 1997.  It had snowed and the employee remembered he was Ascratching some leaves or some snow.  I don=t know what it was.  And I was scratching that out of a corner, and I couldn=t stand the pain no more, and that=s what I was doing at the time - - when my boss come driving up I guess I was - - I just had a lot of pain when he come driving up.  He took me right in to the emergency room.@  (T. 53-58.)

 

The employee was seen at the emergency room and then admitted to Worthington Regional Hospital on November 4, 1997.  The initial diagnosis was low back pain secondary to muscle strain.  An MRI scan on November 9, 1997, showed a disc protrusion at L5-S1 with impingement of the L5 nerve root and mild degenerative disc disease from L4 through S1.  The employee received epidural injections on November 10, 1997, and was discharged from the hospital on November 15, 1997.  The discharge diagnosis was acute myofascial pain and disc protrusions at L4-5 and L5-S1.  Dr. J.N. Mork opined the disc protrusions were not, however, the cause of the employee=s pain.  (Pet. Ex. A-2: Discharge Summary.)  On November 24, 1997, the employee returned to Dr. Donovan, who diagnosed an acute myofascial strain, spondylodesis,^[1] degenerative disc disease and an L5-S1 herniated disc without evidence of radiculopathy.  The doctor prescribed physical therapy.  (Pet. Ex. A-1.)  The employee was off work for approximately two months and then returned to work part-time, on a gradually increasing schedule.  (T. 62.)  On February 27, 1998, Dr. Donovan noted the employee wanted a trial of normal work activities and the doctor released him to do so.  (Pet. Ex. A-1.)

 

On November 13, 1997, the insurer filed a Primary Liability Determination identifying a date of injury of November 4, 1997, and denying primary liability.  The insurer contended the employee=s work exceeded his restrictions and asserted the insurer had no medical evidence the employee=s injury was related to his work activities.  On March 30, 1998, the insurer filed a Primary Liability Determination stating liability for a personal injury on November 4, 1997 was accepted.  The insurer then paid certain medical and wage loss benefits and paid a 3.5 percent whole body disability based on Dr. Donovan=s medical report of September 21, 1998.^[2]  (Notice of Benefit Payment filed October 6, 1998.)

 

The employee was examined by Dr. Jack Drogt on February 6, 1998, at the request of the insurer.  The doctor reported a history of a gradual onset of low back discomfort on November 3, 1997 Awhile clearing snow and leaves from a doorway at a school.@  Dr. Drogt diagnosed pre-existing degenerative disc disease and pre-existing L5 spondylosis.  The doctor opined the employee sustained a lumbosacral strain with a myofascial component on November 3, 1997, and concluded this injury was a temporary aggravation of the pre-existing L5 spondylosis and the pre-existing degenerative disc disease at L4-5 and L5-S1.  Based on the history provided, the doctor stated the employee=s symptoms arose out of his employment activities on November 3, 1997, however, the doctor opined the injury was a minor one and was in the process of resolving.  (Resp. Ex. 1.) 

 

In December 1998, Dr. Donovan referred the employee to Dr. Walter Carlson, an orthopedic surgeon.  A repeat MRI scan on January 13, 1999, showed a small central disc protrusion at L4-5, a moderate disc bulge at L5-S1 with possible spondylosis at L5.  A CT scan on January 22, 1999 showed Grade I spondylolisthesis of L5-S1 and a bulging disc at L4-5.  Dr. Carlson recommended all nonoperative management options be exhausted before considering a fusion procedure.  (Pet. Ex. A-1.)  On February 4, 1999, Dr. Lockwood provided an L5 nerve root injection which provided the employee some relief from his back pain.  In April 1999, Dr. Carlson recommended intradiscal electrothermal therapy (IDET) at the L4-5 level.  (Pet. Ex. C.)

 

Dr. Drogt re-examined the employee on July 23, 1999.  The doctor recorded a history of Aa work-related injury on November 4, 1997.@  Dr. Drogt noted the employee had chronic right-sided low back pain, primarily in the right sacroiliac joint.  This pain, the doctor stated, was a continuation of the pain the employee had before November 4, 1997.  Finally, Dr. Drogt stated the IDET therapy was an untested procedure in an investigational stage.  Although it might be an option for the employee, the doctor believed the uncertainties inherent in the procedure warranted caution.  (Resp. Ex. 2.)

 

The employee filed a Medical Request on May 17, 1999, seeking payment of certain medical expenses and approval for the IDET treatment recommended by Dr. Carlson.^[3]  On July 28, 1999, Blue Cross Blue Shield of Minnesota filed an intervention claim seeking payment of $19,142.06 in treatment expenses.  In their response to the intervention claim, the employer and insurer admitted the employee sustained a personal injury on November 4, 1997 in the nature of a temporary aggravation, but denied the injury caused the need for the medical expenses and denied the claimed expenses were reasonable and necessary.  An order granting intervention was filed on September 3, 1999.

 

The case was heard by a compensation judge at the Office of Administrative Hearings on March 1, 2000.  Prior to commencing the hearing, the compensation judge conducted a brief pre-trial.  The compensation judge stated the Aemployee had an injury 11/4/97.  It=s my understanding the employer is acknowledging that an incident occurred on that date.  It=s their position, however, that that was a minor injury and a temporary aggravation.  The employee, however, is alleging that he is having continuing problems as a result of that incident and has incurred medical expense.@  (T. 6-7.)  The employee contended, based on Dr. Carlson=s testimony, that the employee=s injury was Aa permanent aggravation by virtue of the fact that he has not, in fact, returned to the level that he was at prior to November 4 of 1997; and, therefore, the treatment expenses should be paid.@  (T. 16.)  The compensation judge then asked, AYou made a statement that you feel it=s a permanent aggravation.  Is it absolutely necessary that I make a determination on that?  Is it possible that there could be a temporary aggravation?@  Mr. Shepherd responded, AIt=s either a permanent aggravation or it=s a temporary aggravation that=s still - - it hasn=t ended, I guess.  That would be fair.@  (T. 17-18.)  Ms. Monson on behalf of the employer and insurer stated, Awe would ask for a finding that Mr. Scheidt had a temporary aggravation of his long-standing and pre-existing low back condition as a result of the limited work activities he was doing with his 10-pound restriction at work on November 3rd of 1997 and November 4th of 1997; that he recovered from that aggravation no later than the time of the first IME with Dr. Drogt which was completed in February of 1998.@  (T. 29.)

 

In a Findings and Order filed April 18, 2000, the compensation judge found the employee failed to prove by a preponderance of the evidence he sustained a low back injury on November 4, 1997.  The compensation judge further found she was not able to make findings and determinations on the reasonableness and necessity of the medical expenses regarding a November 4, 1997 injury.^[4]  Accordingly, the compensation judge dismissed the employee=s medical request.  The compensation judge, however, found the employee was not barred from making a claim for a November 3, 1997 personal injury.  The employee appealed the compensation judge=s denial of his claim for medical expenses.

 

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).

 

DECISION

 

The compensation judge found the employee did not sustain a personal injury arising out of his employment on November 4, 1997.  The employee argues the employer=s liability for a personal injury on either November 3 or November 4, 1997 was not in issue at the March 1, 2000 hearing.  Rather, the primary issue before the compensation judge was whether the medical expenses incurred by the employee were reasonable, necessary and causally related to the admitted injury.  Accordingly, the employee asserts the compensation judge=s finding is legally erroneous.  We agree.

 

In March 1998, the employer and insurer accepted liability for a personal injury on November 4, 1997.  The insurer then paid medical, wage loss and permanent partial disability benefits.  The hearing on March 1, 2000 was scheduled to resolve the issues raised by the employee=s medical request and the intervention claim of Blue Cross Blue Shield.  In their response to the intervention claim, the employer and insurer admitted the employee sustained a personal injury on November 4, 1997.  At the beginning of the hearing, the compensation judge identified two issues.  The first was whether the employee=s personal injury on November 4, 1997 was a permanent or temporary aggravation of a pre-existing condition.  The second and primary issue was whether the medical expenses claimed by the employee and the intervenor were reasonable, necessary and causally related to the employee=s personal injury.^[5]  Whether the employee=s injury arose out of his work activities on November 3 or November 4 or a combination of the two was never disputed by the employer and insurer or raised as an issue at the hearing.

 

The judge committed clear error by deciding an issue not presented to her.  See e.g., Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 894, 40 W.C.D. 869, 872 (Minn. 1988) (Abasic fairness requires that the parties in a workers= compensation proceeding be afforded reasonable notice and an opportunity to be heard before decisions concerning entitlement to benefits can be made@); see Minn. Stat. ' 176.371 (A[a]ll questions of fact and law submitted to a compensation judge at hearing shall be disposed of . . . .@ (emphasis added)).  The compensation judge=s finding that the employee failed to prove a low back injury on November 4, 1997 is, therefore, reversed.  The case is remanded to the compensation judge to make findings regarding the compensability of the medical expenses claimed by the employee and Blue Cross Blue Shield of Minnesota.