GERALD C. LANIGAN, Employee/Appellant, v. SUPERWOOD CORP., a div. of GEORGIA-PACIFIC, SELF-INSURED, Employer.        

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 25, 2001

                                                                             

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE.  Where a copy of a bill from Radiological Associates for $239.50, the amount claimed, was attached to the employee=s claim petition, and the exhibits contained other records which could support the claim, the compensation judge=s finding that the employee failed to document the claim is vacated and the matter is remanded for re­determination.

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY; MEDI­CAL TREATMENT & EXPENSE - TREATMENT PARAMETERS.  The compensation judge=s decision denying payment of medical expenses related to the employee=s treatment at PTOSI is vacated and remanded where (1) the compensation judge failed to resolve the issue, raised and argued by the parties, of whether the treatment was reasonable and necessary; and (2) neither the parties or the compensation judge identified the specific treatment parameters relied upon. 

 

TEMPORARY PARTIAL DISABILITY.  Where the compensation judge may have improperly relied upon restrictions legally determined prior to the time period in dispute, and where the compensation judge overlooked critical medical treatment records and misconstrued other evidence relating to the employee=s medical treatment and restrictions, the compensation judge=s determination that the employee was not entitled to temporary partial disability benefits after December 11, 1999 is vacated and remanded for redetermination.

 

TEMPORARY BENEFITS - UNDERPAYMENT.  There is sufficient evidence in the record to determine whether the employee was underpaid wage loss benefits from and after September 28, 1999, and the compensation judge erred in failing to determine the issue; we vacate and remand.

 

Vacated in part and remanded.

 

Determined by: Johnson, J., Rykken, J., and Pederson, J.

Compensation Judge: Donald C. Erickson

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s findings denying payment of medi­cal expenses at Radiological Associates of Duluth and Physical Therapy Orthopaedic Specialists Inc. (PTOSI), along with reimbursement for out-of-pocket expenses and mileage.  The employee also appeals the compensation judge=s denial of temporary partial disability benefits from and after Decem­ber 11, 1999, and the employee=s claim for underpayment of wage loss benefits from and after September 22, 1998.  We vacate findings 13, 18-21, 23-24, 29, 38-42 and order 1.a.-d., and remand for reconsideration in accordance with this decision.

 

BACKGROUND

 

This case has an extensive litigation history, and we incorporate by reference previous decisions including the Findings and Orders filed on June 6, 1995 and September 25, 1998, together with this court=s decisions of January 10, 1996 and May 6, 1999. 

 

The employee, Gerald C. Lanigan, sustained an admitted personal injury to his mid- and low back on January 23, 1991, while working as a laborer for the self-insured employer, Superwood Corpor­ation/Georgia Pacific Corporation.  At the time of the injury, the employee was working on a rota­ting shift, twelve hours a day, four days on and four days off.  The employee received treatment following the injury, and returned to work for the employer with various restrictions.

 

On May 2, 1994, the self-insured employer filed a notice of intent to discontinue wage loss benefits (NOID), asserting the employee was medically able to return to his regular work with­out restrictions.  In a Findings and Order, served and filed June 6, 1995, Compensation Judge Gregory Bonovetz found, that since January 27, 1993, the employee was reasonably restricted to eight hours of work per day, no more than five consecutive days a week.  The employee was also to avoid repetitive lifting, bending and twisting.^[1]

 

Following the hearing, the employee sought ongoing treatment for his mid- and low back condition from his family physician, Dr. Jean Hoyer.  On June 14, 1995, Dr. Hoyer diagnosed mechanical low back pain, and advised the employee to keep the same work restrictions in place.  In September 1995, Dr. Frank W. Budd, an orthopedist, completed an on-site visit at the request of the self-insured employer.  By report dated September 11, 1995, Dr. Budd opined the employee could work twelve hour days, four days in a row.  Dr. Hoyer disagreed, maintaining restrictions of an eight hour day, five days a week, with no bending, twisting, or prolonged sitting or standing.  On January 5, 1996, Dr. Hoyer indicated the employee=s eight hour day, five days a week restrictions were permanent.  The employee continued treatment with Dr. Hoyer through the summer of 1998 for periodic exacerbations with increased spasm, tightness and pain in the mid- and low back.

 

On December 24, 1997, the self-insured employer filed a Rehabilitation Request, seeking a determination that the employee could return to work twelve hours a day, four days a week.  Following a hearing on August 12, 1998, Compensation Judge Donald C. Erickson issued a Findings and Order on September 25, 1998, denying the request, accepting Dr. Hoyer=s restrictions, and de­termining the evidence did not support changing the employee=s restrictions from eight hours a day, five days a week.  This court affirmed the compensation judge=s determination in a decision served and filed May 6, 1999.

 

On September 22, 1998, the employee was seen at the Duluth Clinic for an  aggravation of his thoracic-lumbar condition.  The doctor took the employee off work and advised the employee to follow-up with Dr. Hoyer.  On September 29, 1998, Dr. Hoyer continued the employee off work and referred him for physical therapy.  The employee was released to return to work on October 5, 1998 by Dr. Hoyer Awith his chronic restrictions but initially should return work­ing four hour shifts for one week.@  (Pet. Ex. G.)  On October 19, 1998, the employee reported he was back on eight-hour shifts and was essentially at his baseline.  Dr. Hoyer advised the employee to return if flare-ups occurred, and continued the prior permanent work restrictions, including eight- hour days.  (Findings 6, 7, 8, 9, 10.)

 

The employee returned to Dr. Hoyer on December 11, 1998, reporting one week of worsening back pain and left leg pain.  The employee was taken off work for five days and referred for an MRI scan.  The scan, taken on December 15, 1998, revealed mild to moderate degenerative changes at L4-5 and L5-S1 without stenosis or nerve root impingement.  The employee contacted Dr. Hoyer=s office again on March 31, 1999, reporting increasing back pain.  Toradol was prescribed for pain.  (Pet. Ex. G.)

 

On June 15, 1999, the employee contacted Dr. Hoyer=s office reporting increased back pain.  When examined by Dr. Hoyer on June 17, 1999, the employee gave a history of  worsening low back pain since June 14, 1999 when, at home, he twisted his back trying to remove rusty bolts (from a car he was restoring) with a large socket wrench.  Dr. Hoyer assessed chronic low back pain with extension into the mid-back, continued the employee off work and referred the employee for physical therapy.  (Pet. Ex. G.)

 

The employee was seen in follow-up by Dr. Hoyer on June 21, 1999.  She released the employee to return to work on June 23, 1999, with his Apermanent@ restrictions but limited to four-hour shifts.  On June 30, 1999, Dr. Hoyer continued the limitation of four-hour shifts, and referred the employee to Dr. Martinson for consultation regarding other treatment options.  Dr. Martinson examined the employee on July 7, 1999.  Dr. Martinson prescribed six weeks of physical therapy at the Duluth Clinic-Hermantown, and continued the Apermanent@ work restrictions and four-hour shift limitation.  (Pet. Ex. G.)

 

The employee returned to Dr. Martinson on August 17, 1999.  The employee reported his back pain was unchanged with constant pain in the right mid- and low back region.  Physical therapy was continued, and the employee=s four hour work restrictions were extended.  Dr. Martinson also made a referral to PTOSI for further evaluation and treatment.  The employee was seen in follow-up by Dr. Hoyer on September 3, 1999, who again continued the four hour shift limitation.

 

The employee began treatment at the Minnetonka PTOSI clinic on September 13, 1999.  He was seen for treatment twice a day for five days through September 17, 1999.  During the week he stayed at a hotel, and also incurred travel and meal expenses.  The discharge summary, dated September 23, 1999, states the employee was reporting good im­prove­ment in his condition following the treatment.

 

On October 11, 1999, the employee was examined by Dr. Paul Cederberg at the request of the self-insured employer.  By report dated October 15, 1999, Dr. Cederberg assessed a recurrent thoracic strain following a non-work exacerbation on June 14, 1999, which had resolved by the date of the examination.  The doctor concluded the employee had no objective findings, and opined the em­ployee could return to the same work hours and restrictions Aas found by Judge Erickson in his order of September 25, 1998.@  (Resp. Ex. 16.)  The employee was rechecked by Dr. Hoyer on October 13, 1999.  Dr. Hoyer noted chronic low back pain with symptoms radiating into the right thoracic region.  The doctor maintained the four-hour work shift with permanent restrictions until seen by Dr. Martinson on October 27th.

 

At the follow-up with Dr. Martinson on October 27, 1999, the employee reported his symptoms had im­proved with the treatment at PTOSI, but were slowly increasing again.  The doctor recom­mended an additional 2-3 day course of treatment at PTOSI, and continued the employee=s Acurrent work hours and restrictions@ until after completion of the treatment.  The following day, October 28, 1999, the self-insured employer informed the employee that, according to the indepen­dent medical examiner, he could return to work eight hours a day, and that work was available to him on an eight hour a day basis with light-duty restrictions.  The self-insured employer advised the employee of the availability of eight-hour a day work, in writing, in a letter dated November 9, 1999.

 

On December 9, 1999, the employee returned to see Dr. Martinson.  The self-insured em­ployer had denied authorization for additional treatment at PTOSI.  The employee ­also reported that on December 7, 1999, the employer had transferred him from the production department to the finishing department where he was working as a finishing assistant.  The employee stated that his symptoms had increased in severity with the new job.   Dr. Martinson again recom­mended evaluation and treatment at PTOSI, and, if denied, in light of his recent exacerbations, a new functional capa­cities evaluation (FCE) to assess the employee=s current work abilities based on an eight hour day.  Dr. Martinson provided specific light-duty restrictions and continued the four-hour per day limitation until the treatment or FCE was completed.

 

On October 28, 1999, the self-insured employer served an NOID, seeking discontinuance of temporary partial disability benefits from and after October 17, 1999, asserting the employee was able to return to work eight hours a day based on the opinion of Dr. Cederburg.  In an order issued December 6, 1999, Compensation Judge Arnold, Settlement Division, permitted the discontinuance of tem­porary partial disability benefits effective December 11, 1999.  The employee filed an Objec­tion to Discontinuance on January 3, 2000.  On November 11, 1999, the employee had filed a claim petition alleging underpayment of temporary total and temporary partial disability benefits from September 22, 1998 and continuing, and seeking payment of a bill from Radiological Associates.  The employee later amended the claim seeking payment for expenses related to his treatment at PTOSI.  The claim petition and objection to discontinuance were consolidated for hearing.

 

The case was heard by Compensation Judge Donald Erickson on April 10, 2000.  In a Findings and Order, served and filed July 10, 2000, the judge found, inter alia, the employee failed to prove: (1) entitlement to payment of the bill from Radiological Associates, (2) he was underpaid indemnity benefits from and after September 22, 1998, or (3) that an exception to the treatment para­meters applied to the treatment received at PTOSI.  The compensation judge also found the four hour work restriction claimed by the employee was contrary to the previous Findings and Orders of two compensation judges and was not supported by the weight of the evidence.  The judge, accordingly, denied payment of medical expense benefits for Radiological Associates and PTOSI, denied the claim for underpayment of indemnity benefits, and denied the employee=s claim for temporary partial disability benefits after December 11, 1999.  The employee appeals.

 

STANDARD OF REVIEW

 

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).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be af­firmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60, 37 W.C.D. 235, 240 (Minn. 1984).  Similarly, 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

Radiological Associates Bill

 

The compensation judge denied the employee=s claim for payment of a medical bill from Radiological Associates of Duluth, finding the employee had not submitted into evidence either a bill for unpaid services or records from Radiological Associates, making it impossible to determine what medical expense at Radiological Associates was unpaid.  The employee appeals.

 

The Radiological Associates bill is not among the medical bills admitted at the hearing.  (See T. 6-7.)  The self-insured employer argues the judge properly dismissed the claim, asserting a judge may not con­sider factual information that is not a part of the record.  Minn. R. 1415.3000, subp. 1.  However, under Minn. R. 1415.2900, subp. 7.B., Athe record@ in a compensation case includes Aall pleadings, . . . including the judgment roll.@  In this case, a copy of a bill from Radiological Associates for $239.50, the amount claimed (T. 6), is attached to the employee=s November 9, 1999 Claim Petition.  The statement is dated April 1, 1999, lists George Alan Norris as the AResp Phys@ and indicates it is a workers= compensation bill.  The employee had an MRI scan of the lumbar spine on December 14, 1998, the report of which was completed by G. Alan Norris, M.D.  This report was admitted into evidence as Petitioner=s Exhibit G.  The scan was done at the request of Dr. Jean E. Hoyer, the employee=s treating physician. (Pet. Ex. G: 12/11/98.)  It is general­ly prudent to introduce a bill supporting a claim as an exhibit at the time of hearing, especially where, as in this case, the judgment roll is quite extensive.  However, in this case, the evidence necessary to determine the issue was clearly part of the record.  We, accordingly, vacate finding 41 and order 1.a. and remand for redetermination.

 

Medical Treatment at PTOSI

 

The com­pensation judge found the employee failed to prove the treatment pro­vided at PTOSI between September 13 and 19, 1999, fell within any exception to the medical treat­ment para­meters, and denied payment along with reimbursement for out-of-pocket expenses.  (Find­ing 40.)  The employee appeals.

 

Reasonableness and Necessity

 

The employee first asserts the compensation judge committed an error of law by failing to make any finding regarding the reasonableness and necessity of the treatment at PTOSI.  The threshold issue for determining the compensability of medical treat­ment expenses, regardless of whether the treatment parameters apply, is whether under case law standards the treatment was rea­sonable and necessary to cure or relieve the effects of the personal injury.  Lehman v. Hy-Vee Food Stores, No. 475-90-0770 (W.C.C.A. Nov. 2, 1995; see also Martin v. Xerox Corp., 59 W.C.D. 509 (W.C.C.A. 1999); Minn. Stat. '176.135, subd. 1(a); Minn. R. 5221.6040, subp. 10;  Minn. R. 5221.6050, subp. 1.A.  The parties clearly raised and argued the question of whether the treatment pro­vided at PTOSI was reasonable or necessary, and it was specifically listed by the judge in the issues presented for decision.  (Finding 1.e.; T. 9, 19, 27).  It is equally clear the dispute was not resolved by the judge.  Although it is not always necessary to address this issue, it seems appropriate given the circumstances in this case, to remand the issue for determination.

 

Treatment Parameters

 

At the hearing, the self-insured employer asserted the PTOSI treatment Aexceed[ed] the treatment parameters.@  The respondent, however, neither developed the treatment parameters argument or identified the particular treatment parameter(s) on which they relied.  (T. 9, 19, 27, 33-34.)  Nor did the judge cite any specific treatment parameters in his decision, or discuss how any particular treatment parameter applied to limit or allow compensation for the treatment pro­vided on the facts of this case.

 

On appeal, the parties cite to and argue specific treatment parameters in support of their position on liability for the PTOSI treatment expenses.  However, none of these arguments were made to the court below.  It is not the responsibility of this court to apply the facts to the rules or to guess at the judge=s reasoning, nor, given the length and complexity of the treatment parameters, should the compensation judge be required to guess at the parties= claims and defenses under the rules.

 

[T]he treatment parameters are complex, and they are not workable in litigation unless the parties inform the judge as to which specific rules are at issue and the judge then explains in his or her decision . . . how the rules allow, or preclude, any given claimed treatment expense.  . . . It is simply unacceptable for the parties or the judge to simply cite [the Atreatment parameters@] without further explanation.

 

Boryca v. Marvin Lumber & Cedar, No. 507-86-8184 (W.C.C.A. (Nov. 10, 1999).^[2]

 

Furthermore, the compensation judge=s determination appears to be based, in part, on his finding that the employee=s treating physiatrist, Dr. Martinson, Aadmitted@ the employee=s Apassive treatment@ exceeded the Atreatment para­meters.@  (Findings 39, 40.)  Although, in his deposition, Dr. Martinson agreed the employee had a lot of physical therapy, and that it would exceed Athe minimum standards@ (emphasis added) under the treatment parameters, the doctor did not agree the treat­ment provided was beyond that which the treatment parameters would authorize.  Neither counsel for the self-insured employer or Dr. Martinson used the words Apassive treatment@ during this exchange, nor is there any dis­cussion of any specific treatment parameter(s) relating to Aphysical therapy@ or whether PTOSI=s treatment fell within some Apassive treatment@ category under the treatment para­meters.  (Resp. Ex. 19 at 41-42.)  Moreover, the issue of whether and how the treatment parameters apply is not a question determinable solely by medical opinion, but one of ultimate fact which must be determined by the compensation judge on all of the facts presented.

 

We, accordingly, vacate findings 39 and 40 and order 1.c. and remand the matter to the compensation judge for reconsideration.  Issues for determination on remand include whether the treatment provided at PTOSI was reasonable or necessary; whether the treatment is inconsistent with any treatment parameter specifically identified by the self-insured employer; and whether any of the grounds for de­parture from the applicable parameters apply.  See Minn. R. 5221.6050, subp. 7.D.;  see Martin at 517.  The compensation judge may consider additional evidence or argument regarding the application of specific treatment parameters, as necessary.  The judge need not and should not consider claims based on any rule not specifically raised by the parties.

 

Temporary Partial Disability Benefits after December 11, 1999

 

The compensation judge denied the employee=s claim for temporary partial disability benefits after December 11, 1999, concluding there was no compelling reason the em­ployee could not work eight hours a day.  The employee contends the compensation judge=s deter­mination is contrary to substantial evidence and is clearly erroneous.  We vacate and remand for redetermination.

 

It is not entirely clear on what basis the compensation judge found the Afour hour work restriction is contrary to . . . the weight of the evidence in this proceeding.@  (Finding 38.)   However, the judge concluded, in part, that the Afour hour restriction is contrary to the Findings and Order of two Compensation Judges in previous litigation.@  (Finding 38.)  The employee alleged an aggravation of his work-related low back condition on June 14, 1999, resulting in in­creased limitations.  The restrictions judicially established prior to the aggravation are not res judicata after that date.  Rather, an independent determination must be made of the employee=s re­strictions during the periods in which entitlement to temporary partial disability benefits were in dispute.

 

It appears the compensation judge=s determination was also based on the judge=s finding ­that the employee had Aconvince[d] Dr. Martinson he had a permanent four hour restriction@ when he, in fact, had an A8 hour per day permanent restriction,@ (findings 20, 38) and to some extent, at least, on the conclusion that medical records from Dr. Hoyer were not sub­mitted into evidence.  The judge found that Dr. Hoyer, the employee=s long-time family physician, Aapparently@ saw the em­ployee on June 17 and 21, 1999, returned the employee to work at four hours per day on June 23, 1999, Aand according to her deposi­tion turned his care over to Dr. Martinson.@  In a footnote, the judge added, AThe records of these office visits were not submitted into evidence.@ (Finding 18, ftnt. 1.)  In his memorandum, the judge emphasized that A[c]ritical records of the employee=s treatment after the exacerbation, if they exist at all, were never submitted into evidence.@  (Mem. at 10.)  This is incorrect.  The judge clear­ly overlooked portions of the exhibit containing Dr. Hoyer=s records.  Copies of Dr. Hoyer=s treatment notes for June 15, 17, 21, and 30, 1999 are included in Petitioner=s Exhibit G.  Morever, it was during this period of time that Dr. Hoyer returned the employee to work, effective June 23, 1999, stating she would Anot have to change his already permanent restrictions but will have him return on four-hour shifts.@  On July 30, 1999, Dr. Hoyer referred the employee to Dr. Martinson who had seen the employee once previously in 1998.  On the employee=s first visit on July 7, 1999, Dr. Martinson recorded Dr. Hoyer=s restrictions nearly verbatim, noting the employee was released to work with Apermanent restrictions with four-hour shifts.@  Dr. Hoyer did not turn over the employee=s care to Dr. Martinson at that point, but continued to see and treat the employee through October 13, 1999.  These records are also in evidence and the judge, in fact, references some of that treatment.

 

In finding 20, the compensation judge found that AOn July 7, 1999, the employee was examined by Dr. Martinson.  The employee incorrectly advised Dr. Martinson that he had a per­manent four hour restriction, when in fact, he had an 8 hour per day permanent restric­tion.@  (Emphasis and underlining is the judge=s; see also findings 19, 38.)  This finding is not supported by substantial evidence.  At the July 7, 1999 visit, Dr. Martinson continued the employee=s physical therapy at the Duluth Clinic Hermantown for six weeks and gave the employee a slip continuing the Acurrent work hours/restrictions (four hours per day with permanent restrictions),@ with follow-up in six weeks.  The doctor stated Aadvancing work hours@ without significant intervening improve­ment would place him at risk for reinjury Auntil completion of his therapy program.@  (Pet. Ex. G.)

 

Both Dr. Hoyer and Dr. Martinson consistently used similar language in describing the employee=s restrictions.  Both referred to the employee=s Achronic@ or Apermanent@ restrictions as something separate from limitations on his work hours.  In her deposition, Dr. Hoyer explained that Apermanent restrictions@ and Afour-hour shifts@ refer to two different things.  The employee=s pre­vious restrictions included light-duty restrictions and eight hour shifts, so Awhat I had said was that I was not changing his restrictions as far as his duties, that light duty restriction, but he was changed to four-hour shifts.@  (Resp. Ex. 18 at 22; compare finding 19.)

 

There is nothing in Dr. Martinson=s records that indicate he ever treated the four-hour shift limitation as a permanent restriction.  However, in his deposition, Dr. Martinson testified he could not recall who placed the light duty and four hour restrictions on the employee, but they were apparently permanent at the time he initially saw him.^[3]  (Pet. Ex. G; Resp. Ex. 19 at 7-8.)  The em­ployee testified he did not tell Dr. Martinson the four-hour restriction was a permanent restriction.  (T. 65.)  Similarly, Dr. Martinson testified the employee did not ask him for restrictions or make specific comments regarding his restrictions.  The doctor stated he did recall the four hours and the light duty, but AI don=t recall him [the employee] saying that they were permanent in nature.@  When pressed by counsel for the self-insured employer to state whether his understanding that Athose@ were Apermanent restrictions@ likely came from the employee, Dr. Martinson stated Aprobably.@  (Resp. Ex. 19 at 31-32.)^[4]

 

The compensation judge also found that on July 9, 1999, the employer asked ADr. Martinson@ to clarify why the employee was restricted to four hours of work Afor an additional six weeks@ instead of returning him to his Apermanent restrictions of eight hours per day,@ and that the record did not reflect a response by Dr. Martinson.  (Finding 21.)  In fact, the letter was sent by the Georgia-Pacific Corporation claims supervisor, from its office in Portland, Oregon, solely to Dr. Hoyer at her office in Superior, Wisconsin, and not to Dr. Martinson who offices at the Polinsky Center in Duluth, Minnesota.  The letter requested a faxed response to the Portland, Oregon, office number.^[5]  (Pet. Ex. G.)

 

In finding 24, the judge references a September 3, 1999 recheck by Dr. Hoyer, noting that on examination the doctor found Aa normal ROM, motor strength, deep tendon reflexes, and sensation to light touch in the upper/lower extremities bilaterally.@  (Emphasis the judge=s.)  How­ever, the employee=s condition has always been diagnosed as a thoracic-lumbar strain/sprain with no symptoms in the arms or legs and no clinical neurological findings.  The judge=s emphasis is perplexing since the examination findings reflect no findings that are significantly different relating to the em­ployee=s condition at that point.

 

In finding 29, the compensation judge notes the employee reported to Dr. Hoyer on October 13, 1999, that he had fractured two ribs while receiving physical therapy at PTOSI, and that x-rays of the Athoracic spine@ taken that day did not reveal any fractures.  While the employee did report Afractured ribs@ to Dr. Hoyer, the thoracic spine x-ray was separately ordered by Dr. Hoyer because she was concerned about the employee=s increasing mid-back (thoracic spine) symptoms. It was not an x-ray of his ribs.  (Pet. Ex. G: 10/13/99; see Dr. Martinson 10/27/99.)

 

Finally, the compensation judge found ADr. Martinson admitted that the job descrip­tion he had received from the employee was inconsistent with the job the employee had described to both Dr. Hoyer and his physical therapist at the Duluth Clinic-Hermantown.@  (Finding 39.)  This again is not consistent with the medical records or Dr. Martinson=s testimony.  The Ajob description@ given Dr. Hoyer refers to a statement in her June 17, 1999 chart note, shortly after the exacerbation, indicating the employee reported he had been off work all week, stating that although his Anew duties@ at work were not Atoo intensive,@ he had been unable to maintain himself in any one position for long enough to do anything.  (Pet. Ex. G.)  Simi­larly, in a note in the Hermantown office records on June 23, 1999, the therapist wrote the employee had returned to work on Monday, four hours per day and was ANot doing much.@  On August 17, 1999, Dr. Martinson commented the employee had returned to work as of June 23, 1999, and the employee stated his employer had been extremely amenable allowing him to change positions and modify activities as needed.  Dr. Martinson con­tinued to make similar notations through October 27, 1999.  On November 9, 1999, the employer informed the employee in writing that, based on the representations of their attorney indicating the IME doctor had released him to eight hours of work per day, they had available and had offered light-duty work on an eight hour a day basis.  (See findings 28, 32; Resp. Ex. 25.)  The employee returned to see Dr. Martinson on December 9, 1999, reporting that on his arrival at work on De­cember 7, 1999, his job position had been changed.  The employee stated he had been working in the production department but was trans­ferred to the finishing department.  It was this job, according to the em­ployee, that required standing on a concrete floor, lifting over 25 pounds, and significant amounts of bending and twisting.  (Pet. Ex. G; Resp. Ex. 19 at 13-14.)  When asked about the Adiscre­pancies@ in the Ajob descriptions@ given to Dr. Hoyer and the therapist and his December 1999 description, Dr. Martinson stated he was not aware of what the employee had told Dr. Hoyer or the Hermantown therapist.  He agreed the above statement recorded by Dr. Hoyer would be inconsistent with the employee=s description of his job on December 9, 1999, but the employee had indicated he had been transferred so he could not be sure of any correlation between the two jobs.  (Resp. Ex. 19 at 13-14, 16-17.).

 

Given the number of discrepancies between the evidence of record and the compensation judge=s factual findings, we believe the matter must be remanded for reconsideration.  We, accord­ingly, vacate findings 13, 18-21, 24, 29, 38-39 and order 1.d. and remand the question of entitlement to temporary partial disability benefits after December 11, 1999, for redetermination.

 

Underpayment of Wage Loss Benefits from September 22, 1998

 

The compensation judge found the employee submitted no evidence regarding the amount of indemnity benefits paid from and after September 22, 1998, or an accounting of the difference between what the employee was paid from September 22, 1998 and what he claimed he should have been paid, and denied the employee=s underpayment claim.  (Finding 42.)  The employee appeals, asserting he submitted sufficient evidence to support his claim for underpayment of wage loss benefits.

 

At the hearing, the employee submitted Petitioner=s Exhibit F which contained a two page indemnity worksheet listing the employee=s average weekly wage, his earnings, the temporary partial disa­bility rate, and total compensation due.  Attached to the worksheet are copies of payroll records showing the employee=s earnings during the claimed period of underpayment.  The work­sheet was admitted for Aillustrative purposes@ only.  However, contrary to counsel=s argument, the self-insured employer did not object to admission of the payroll records and they were, in fact, admitted for evidentiary pur­poses.  (T. 10-11.)   Attached to the employee=s Claim Petition are copies of indem­nity payments made to the employee by Georgia-Pacific between September 28, 1998 and October 20, 1999.   While it would be helpful to have a itemization calculating the difference between the bene­fits claim­ed and the amount of indemnity paid, there is sufficient evidence in the record to de­termine whether there has been an underpayment of wage loss benefits due to the employee.  We, therefore, vacate finding 42 and order 1.b., and remand for determination.  On remand, the compensation judge may request further information from the parties to aid the judge in resolving this issue.