ROBERT G. WINDSPERGER, Employee/Appellant, v. VIKING AUTOMATIC SPRINKLER and CNA INS. CO., Employer-Insurer.

 

WORKERS' COMPENSATION COURT OF APPEALS

FEBRUARY 4, 2000

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - SUBSTANTIAL EVIDENCE.  Substantial evidence, including lay testimony, medical records and expert medical testimony supported the compensation judge=s finding that the employee=s participation in the Sojourn Adult Day Program did not constitute medical treatment but was instead attendant day care or nursing services.

 

EVIDENCE - ESTOPPEL & LACHES.  The mistaken or good will payment by the employer and insurer subsequent to an Award on Stipulation of expenses closed out in the stipulation did not estop them from discontinuing such payments and defending against future payments after the mistake was discovered or there was a change of heart.

 

Affirmed.

 

Determined by Wilson, J., Pedersen, J., and Wheeler, C.J.

Compensation Judge:  James F. Cannon

 

 

OPINION

 

STEVEN D. WHEELER, Judge

 

The employee appeals from the compensation judge's determination that the provider charges and mileage expenses associated with the employee=s care at the Sojourn Adult Day Program from and after April 1, 1997 were closed out under the terms of an Award on Stipulation served and filed March 8, 1996.  We affirm.

 

BACKGROUND

 

The employee, Robert G. Windsperger, sustained a work-related injury on December 3, 1992 involving his head, brain, back, hearing and eyesight.  He has been permanently totally disabled since the date of the injury.  (Findings 1-4.)

 

The employee began attending a daycare program at the Courage Center two days per week some time in the spring of 1993.  (T. 36.)  On February 2, 1995, Dr. Paul M. Silverstein, the employee=s treating neurologist, outlined the purposes of the daycare program at that time:

 

The need for a daycare program is based on several factors.  For one, he is not entirely safe to be left at home alone, thereby encumbering Mrs. Windsperger and preventing her from pursuit of her normal activities including employment. Secondly, the daycare setting provides additional mental and physical stimulation for Mr. Windsperger, which I feel is of potential help in his long-range rehabilitation.  Even though I indicate above that I feel he is at MMI, realistically, I do not think I can preclude that some further improvement in his cognition might come about in time provided that he is in an intellectually stimulating environment such that his cognitive powers are being challenged and directed toward further recovery. . . For this purpose, I think it would be reasonable to allow another year=s duration of a daycare program.  Beyond that, it really falls back more into the realm of his being properly cared for so as to free up Mrs. Windsperger.

 

(Exh. 5: 2/2/95.)

 

The parties entered into a stipulation for settlement and an Award on Stipulation was served and filed on March 8, 1996.  Under the terms of the stipulation, the parties agreed that the employee was permanently totally disabled and the employer and insurer agreed to pay permanent total disability compensation subject to an offset for social security disability benefits received by the employee.  The employee was paid a lump sum of $126,000.00 representing $26,000.00 in attorney fees, $75,000.00 for settlement of claims for past nursing service expenses and $25,000.00 for a full, final and complete close out of the employee=s claim for permanent partial disability compensation to the extent of an 81.8 percent permanent partial disability.  The employer and insurer also agreed to fund the payment of 20 consecutive annual payments of $23,780.00 each representing compensation for future nursing services.  The stipulation left open claims for reasonable and necessary medical expenses but closed out all past, present and future claims for Anursing or attendant care or services, of any type or nature whatsoever, whether in-patient, out-patient or in-home and whether provided by the employee=s spouse or any third party provider.@  The stipulation also provided that any reimbursement for subsequent transportation expenses for the employee=s treatment would be limited to a per mile reimbursement and that the employer and insurer would not be liable for charges Aattendant on the use of public or private transportation services.@  (Exh. 1.)

 

Within a few weeks after the settlement, the employee=s wife began looking for a program closer to the employee=s home, so that she could transport the employee to the program and not need to continue the use of a transportation service.  The employer and insurer orally agreed to continue paying for the employee=s transportation service for an additional two months to give the employee time to find another program. Mrs. Windsperger identified a program in Delano, Minnesota, known as Buffalo Adult Daycare, which provided services similar to those the employee was receiving at Courage Center.  She then contacted the insurer=s claims adjuster, Sharon Stolquist and requested that the insurer agree to the employee transferring from Courage Center to the Buffalo program.  Ms. Stolquist told the employee=s wife that this Awould not be a problem.@  (T. 37-41.)

 

However, there was a waiting list for the Buffalo program and the employee continued attending the Courage Center Program for about six weeks following the date of the stipulated settlement.  The employer and insurer continued to pay for the costs associated with the employee=s attendance at the Courage Center.   Eventually, it became apparent to the employee=s wife that space would not become available in the Buffalo Adult Daycare program before the employer and insurer stopped paying for the transportation services.  She then identified another program, the Sojourn Adult Day Program, located in Spring Park, Minnesota.   She contacted Ms. Stolquist again about substituting this program, and Ms. Stolquist asked that Mrs. Windsperger send her further information about the program.  The employee began attending the Sojourn program on May 13, 1996.  The employer and insurer continued to pay for the employee=s attendance for about a year.  (T. 48-50.)

 

In February 1997 Ms. Stolquist received a letter from Beana Hatch, program coordinator at the Sojourn Adult Day Program, which summarized the employee=s activities in that program:

 

Mr. Windsperger attends day care two days each week.  He spends six hours at Sojourn each time he comes.  The activities he participates in are: ceramics, gardening, playing cards, and field trips.  The physical exercise he is involved in while in attendance is swimming at the Marsh once a month and exercise class each day. Sojourn does not administer any medication to Mr. Windsperger.  The goal he wants to achieve with our program is to maintain or improve his level of health and independence so that he may continue to live at home with his wife. 

 

(Exh. 2: 2/10/97 letter.)  Also included was a descriptive calendar of activities and billing statements dividing charges into those for adult day care, for ceramics class materials, and for field trips.  (Exh. 2.)

 

Following the receipt of these materials, the insurer notified the Sojourn program that it would no longer pay for the employee=s program there beginning April 1, 1997.  The employee continued to attend and paid for the program from the annual amount received pursuant to the Award on Stipulation.  (T. 48, 63, 69.)

 

On June 26, 1997 the employee=s attorney wrote to Dr. Silverstein enclosing some information about the Sojourn Adult Day Program and asking the doctor=s opinion whether the program went beyond simple attendant care and instead represented medical care and treatment in the form of physical rehabilitation services.  (Exh. 4.)  Dr. Silverstein responded on August 18, 1997, stating:

 

It is apparent that this is a comprehensive program that certainly exceeds simply providing simple attentive care.  Its goal is to facilitate patients= cognitive retraining, improve physical strength and endurance, and establish overall independence. . . Because of the severe nature of his brain injury, it is my opinion that the care and treatment through this facility have been and continue to be reasonably required to care for or relieve him of the effects of his December 3, 1992, industrial accident . . . The measures being taken at Sojourn appears [sic] to provide the type of enriched supportive environment that will provide him the best opportunity for some degree of improvement over time.

 

(Exh.5: 8/18/97 letter.)

 

The employee filed a claim petition on January 30, 1998 seeking reimbursement for the expenses of the employee=s attendance at the Sojourn Adult Day Program.  On February 9, 1998 the employer and insurer answered denying liability on the basis that the Sojourn Adult Day Program did not represent medical treatment but instead was in the nature of attendant day care services for which reimbursement was foreclosed under the terms of the prior Award on Stipulation.  (Judgment Roll.)

 

The matter came on for hearing before a compensation judge of the Office of Administrative Hearings on April 29, 1999.  In addition to the claim that some or all of the activities in which the employee participated at the Sojourn Adult Day Program constituted reasonable and necessary medical treatment, the employee also claimed entitlement to reimbursement for the costs of the program on the alternative theory that the employer and insurer, having paid for the program for over a year without objection, were estopped from denying liability for the costs thereof.

 

Following the hearing, the judge determined that the Sojourn Adult Day Program constituted attendant day care services rather than medical treatment, and that reimbursement for the costs of the program was barred by the March 8, 1996 Award on Stipulation.  (Findings 10, 11.)  The compensation judge further concluded that the employer and insurer were not estopped from denying liability on the basis of their prior payment for such treatment subsequent to the date of the Award on Stipulation.  The employee appeals.

 

STANDARD OF REVIEW

 

On appeal, this court must determine whether the compensation judge's findings and order are "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1(3) (1992).  Substantial evidence supports the findings if, in the context of the record as a whole, they "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 the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, "[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).  Factfindings may not be disturbed, even though this court might disagree with them, "unless 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

 

Medical or Day Care Treatment

 

In reaching the conclusion that the Sojourn Adult Day Program did not provide medical treatment, the compensation judge reasonably took into consideration, among other things, several factors which are not in dispute: specifically, that the program was generally open to the public without any medical referral, that it was not prescribed or supervised by a physician, that the activities did not involve a structured regimen of exercises or therapy, that the employee received no skilled nursing care and that none of the staff of the program had training in physical rehabilitation, occupational therapy, psychological treatment or any other specialized training in the care of brain injured or mentally impaired patients.  (Mem. at 7-8.)

 

The compensation judge=s memorandum further reveals that he apparently accepted the medical opinion of the employer and insurer=s medical expert, Dr. Paul M. Schanfield, who opined that although the Sojourn program assisted the employee by providing intellectual and physical stimulation and enrichment, it was respite care and not medical care or treatment, and could not cure or relieve the effects of the employee=s injury.  (Exh. 3.)  In comparing this view with Dr. Silverstein=s August 18, 1997 statement that the Sojourn program was reasonable and necessary, the judge took into consideration Dr. Silverstein=s prior December 16, 1994 statement that the employee would not benefit from additional outpatient therapy, his February 2, 1995 statement that the employee was at maximum medical improvement as of July 1, 1994, and his prior statements to the effect that the purpose of a day care program for the employee after 1996 would be to allow socialization with others and provide a stimulating environment while meeting the employee=s wife=s need for respite from his daily care. 

 

We conclude that the compensation judge=s determination that the Sojourn Adult Day Program constituted nursing or attendant care or services foreclosed in the Award on Stipulation rather than medical treatment has ample support in the record, and affirm.

 

Estoppel

 

The employee=s estoppel argument is predicated on the contention that the employee relied to her detriment on the employer and insurer=s continued payment for the Courage Center and Sojourn Adult Day Care programs for a period of time following the Award on Stipulation.  We fail to apprehend any detrimental reliance.  First, the charges in dispute are those incurred subsequent to the date the insurer informed the Sojourn staff and the employee that it would no longer pay for the employee=s attendance at the Sojourn program.  It is clear that, in continuing to attend the program, the employee was not relying upon a representation that the employer and insurer would pay for the program after that date. 

 

The employee seeks to assert that the reliance occurred when the insurer acquiesced in the employee=s transfer from the Courage Center program to the Sojourn program.  However, the employee wholly failed to demonstrate that the Courage Center program itself would have constituted reasonable and necessary medical treatment, different from the Sojourn program=s attendant day care, such that the employee gave up treatment compensable under the terms of the stipulation for treatment barred under the stipulation.  Instead, the evidence offered by the employee was to the effect that the Courage Center program was in all significant respects the same as that provided by Sojourn.  As we have affirmed the compensation judge=s determination that reimbursement for the Sojourn program was foreclosed under the Award on Stipulation, so the employee=s own evidence, if accepted, tends to prove only that the expenses of the Courage Center program, had the employee continued there, would have been equally non-reimbursable under the Award on Stipulation.  Thus we see no basis for any argument that the change in programs was detrimental with respect to the employee=s right to reimbursement.

 

The remaining basis for the employee=s estoppel argument is only that the employer and insurer did in fact mistakenly or by goodwill gratuitously pay for treatment for which they were not obligated.  Prior case law has rejected the view that gratuitous or mistaken payment of benefits constitutes a basis on which to estop the employer and insurer from ceasing to pay benefits for which they are not liable, upon discovery of the fact or change of heart.  Cf., e.g., Toenberg v. Harvey, 235 Minn. 50, 49 N.W.2d 578, 17 W.C.D. 58 (Minn. 1951); Scott v. Kirk Minnesota Co., 271 Minn. 96, 135 N.W.2d 31, 23 W.C.D. 890 (Minn. 1965).   The determination that the employer and insurer were not estopped from defending the claim for reimbursement for the period in question is affirmed.