THOMAS C. FARNHAM, Employee, v. MEEHAN TOOL & ENG'G, INC., and SENTRY INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 27, 2002

 

HEADNOTES

 

PRACTICE & PROCEDURE - EXPEDITED HEARING; MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE.  Substantial evidence of record supports the compensation judge=s findings that the employee has not yet reached maximum medical improvement, that he continues to be restricted as a result of his March 28, 2001, injury, and that no grounds exist on which to base a discontinuance of the employee=s temporary total disability benefits.

 

Affirmed in part and modified in part.

 

Determined by Rykken, J., Stofferahn, J., and Wilson, J.

Compensation Judge: Paul D. Vallant

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal from the compensation judge=s determinations that  the employee continues to have restrictions on his ability to work as a result of his injury on March 28, 2001, and has not yet reached maximum medical improvement from that injury; that the employee=s fall at home in December 2001, was a consequence of his work injury of March 28, 2001; and that no reasonable grounds exist to discontinue the employee=s temporary total disability.  The employer and insurer also appeal from the compensation judge=s denial of their request to allow the record to remain open for admission of a supplemental medical report, and from the compensation judge=s refusal to accept into evidence the reports from Washington County Human Services.  We affirm.

 

BACKGROUND

 

On March 28, 2001, Thomas C. Farnham, the employee, was employed as a mold designer and computer numerical control (CNC) programmer by Meehan Tool & Engineering, Inc., the employer.  On that date, after completing his regular work duties, the employee performed work duties in the employer=s shop.  While he was moving a steel plate by using a leverage bar, the employee=s right foot slipped on some oily fluid.  He twisted his back while trying to balance the steel plate and fell onto his right knee, experiencing an immediate sharp pain extending down his right leg.  The employer and insurer accepted primary liability for this injury, and paid workers= compensation benefits to the employee, including temporary total disability benefits, medical expenses and rehabilitation assistance.  The employee has not returned to work since March 28, 2001. 

 

The employee=s prior medical history relative to his low back includes injuries he sustained in a motor vehicle accident in June 1995.  Following that injury he experienced symptoms in his head, neck, shoulder area and low back.  He obtained chiropractic treatment for approximately two weeks and then treated primarily with Dr. David Kraker, who initially recommended conservative management and ultimately performed an anterior-posterior lumbar fusion on March 5, 1996, at the L5-S1 level.  Following that surgery, Dr. Kraker assigned the employee permanent lifting restrictions of up to 35 pounds occasionally, and up to 50 pounds on rare occasions.  The employee testified that he recovered well following his 1996 fusion surgery, and that the surgery resolved his right leg pain.  When he noted a flare-up of low back and right leg pain in early October 1997, he consulted Dr. Kraker=s physician=s assistant, who diagnosed a musculoligamentous sprain/strain, referred the employee to physical therapy for Amodalities and review of his home exercise program,@ and asked the employee to return for a recheck in five weeks if his symptoms did not improve.  The employee apparently did not follow through with the prescribed  therapy, and did not return for further treatment with Dr. Kraker at that time.  The employee testified that he experienced no further low back or right leg symptoms, and sought no additional treatment for low back or right leg symptoms, between October 1997 and his injury in March 2001. 

 

Following the employee=s injury on March 28, 2001, he experienced low back pain, right leg pain radiating to his knee, and intermittent tingling in his right foot and toes.  He consulted  Dr. Charles Hipp, occupational medicine specialist at Stillwater Medical Group, who diagnosed acute mechanical lumbar pain and lumbar radiculitis.  He prescribed pain medication and physical therapy, and restricted the employee from work.  Dr. Hipp also referred the employee for an MRI scan, which was taken on April 17, and which showed a good fusion at the L5-S1 level and a broad based annular bulge or disc protrusion at the L3-4 level.  In May 2001, the employee consulted Dr. Hipp for incontinence problems.  He referred the employee for an orthopedic consultation with Dr. Thomas Rieser, in part to rule out suspected cauda equina syndrome.  On May 2, 2001, Dr. Rieser examined the employee who at that time reported low back pain, bilateral hip and buttock pain, right leg pain extending to his knee, right thigh numbness and right foot numbness.  Testing ruled out cauda equina syndrome.  He prescribed an additional MRI scan of the thoracic and lumbar spine, which was interpreted as showing no change since the MRI scan taken on April 17, 2001.

 

Dr. Rieser prescribed a lumbar epidural and nerve root infiltration and blockade.  The employee underwent that injection, but it apparently provided no symptom relief.   The employee reported additional episodes of stool incontinence, and numbness in his buttocks and rectal area.  At Dr. Hipp=s referral, Dr. Charles Ormiston, neurologist, examined the employee on May 11, 2001, and recommended further testing to determine if there was a lesion that required decompression or a reflex sympathetic dystrophy component that required treatment.  Dr. Ormiston referred the employee to Dr. Bruce Bartie, for a second orthopedic opinion.  Dr. Bartie examined the employee and diagnosed a suspected right lateral disc herniation at the L3-4 level with right L3 radiculopathy, and recommended an EMG of the right lower extremity to confirm that diagnosis.  An EMG performed on May 31, 2001,  had normal results with no evidence for radiculopathy.  Dr. Bartie concluded that the employee=s small disc prolapse at the L3-4 level would not explain his bilateral low back and thigh symptoms, and also concluded that the employee did not have cauda equina syndrome.  He therefore recommended continued conservative care and physical therapy as tolerated.  The employee obtained ongoing treatment through Dr. Hipp, including epidural steroid injections and a prescription for a TENS unit.  On July 7, 2001, Dr. Hipp released the employee to return to work on a light duty basis and by August 24, 2001, he released the employee to return to work with a 20 pound lifting restriction. 

 

On September 6, 2001, Dr. Stephen Barron examined the employee at the request of the employer and insurer.  At that time, the employee reported intermittent and daily lower back pain aggravated by sitting for long periods of time and by driving, and reported occasional numbness in his right thigh and right foot.  Dr. Barron diagnosed a lumbar sprain, and concluded that the employee had a normal orthopedic examination of his lumbar spine without any objective findings.  He found no objective basis for the employee=s radicular symptoms.  He concluded that the disc bulge at the L3-4 level, as noted on the MRI scan, was not caused by the employee=s work injury on March 28, 2001, and was most likely caused by a mild degenerative condition unrelated to any traumatic incident.  Based on the lack of objective findings, Dr. Barron concluded that the employee needed no work restrictions as a result of his injury, and he recommended no further medical treatment.  He also concluded that the employee had reached maximum medical improvement (MMI) from his work-related injury, and had not sustained any permanent partial disability as a result of that injury. 

 

The employee continued his treatment with Dr. Hipp.  On September 13, Dr. Hipp recommended a work hardening program for the employee during the next few weeks.  On September 24, 2001, the employee slipped in his shower at home and noted increased low back and right leg pain.  In a report  dated October 16, 2001, Dr. Hipp stated that

 

[the employee] most recently has had a recurrence of his lumbar disc disease with significant lumbar radiculitis.  At one point, there was active consideration for surgical intervention.  Fortunately, Tom has improved significantly and will not likely need surgery.  He continues with moderate back pain and leg pain.  He has not been assessed for permanency but would certainly be assessed for a permanent impairment when he reaches maximum medical improvement , which I hope would be within the next month or two.

 

In late November 2001, the employee fell while descending steps at his home.  He testified that as he stepped down onto the second step, he fell, landing on his buttocks on the step.  He testified that he had thought his right foot was on the step, but that due to the numbness in his right foot, he could not feel whether his foot was on the step.  The employee consulted Dr. Hipp on December 4, 2001, reporting a worsening of his low back and right leg pain and a few episodes of incontinence.  On examination, Dr. Hipp noted the employee was unable to stand up straight, and that he was bent over to the right.  He also noted the employee=s  shuffling gait with dragging of his right leg.  Dr. Hipp diagnosed regional low back pain, degenerative disc disease, lumbar radiculitis and incontinence Aof unknown cause.@  On December 6, 2001, at Dr. Hipp=s referral, the employee consulted Dr. Ormiston and reported that he had experienced a reoccurrence of bowel and bladder incontinence, and that he also felt an Aelectrical jolt feeling@ down his left leg.  Dr. Ormiston referred the employee for a follow-up MRI, which he interpreted as showing no change from the previous MRI.  He also referred the employee for a consultation with a physiatrist and urologist for additional treatment recommendations, and prescribed additional pain medication.

 

In January 2002, the employee consulted his previous treating surgeon, Dr. Kraker for a second opinion regarding his back and right leg pain.  Dr. Kraker recommended further evaluation with a discography, and recommended that the employee remain off work.  Dr. Kraker diagnosed the employee with probable symptomatic degenerative disc disease at L4-5 with painful annular tear, and degenerative disc disease at the L3-4 level.  Dr. Kraker expressed concern Athat he may require extension of his fusion to allow him to function at a more reasonable level.@

 

In a letter to the employee dated January 31, 2002, Dr. Hipp opined that the employee=s current medical treatment was related to his work injury and not to any injury at home.  He stated that A[y]our slip at home may have temporarily aggravated your underlying work comp. injury but it is not the primary cause of your current problems.  Your current low back pain relates to your work comp. injury.@ 

 

 On February 13, 2002, Dr. Kraker re-examined the employee after review of his discography which reproduced pain at the L3-4 vertebral level.  He recommended right L3 nerve blocks combined with physical therapy, restriction from work, and possible intra-discal steroids or an IDET procedure before considering additional fusion surgery.  The employee underwent a right L3 nerve block on February 18, 2002, that produced nearly complete relief for a few days, but his pain worsened thereafter.  On March 6, 2002, the employee again consulted Dr. Kraker, and reported that his low back and right leg symptoms had increased after his last epidural steroid injection.  Dr. Kraker again recommended intra-discal steroid injections, and possibly an IDET procedure or a fusion from the L-3 to the L-5 vertebral level.  Dr. Kraker also advised that A[b]ecause of his age I have recommended he try to avoid a fusion if at all possible.  He should remain off of work.@  Dr. Kraker also recommended continued physical therapy.

 

This matter proceeded to hearing based upon the employee=s objection to discontinuance.  On October 4, 2001, the employer and insurer filed a notice of intention to discontinue workers= compensation benefits, based upon Dr. Barron=s medical opinion.  Upon the employee=s objection to discontinuance, an administrative conference was held on November 27, 2001, and in an administrative decision served and filed on December 6, 2001, a compensation judge concluded that reasonable grounds existed to discontinue temporary total disability benefits 90 days following service of Dr. Barron=s medical report and notice of MMI.  The employee objected to the discontinuance, and on March 21, 2002, a hearing was held to address the employee=s objection to discontinuance of temporary total disability benefits.

 

In his Findings and Order, served and filed on April 22, 2002, the compensation judge found that the employee had not reached maximum medical improvement from his March 28, 2001, injury;  that the employee=s fall at home in December 2001 was a consequence of his work injury; and that he continues to have restrictions on his ability to work as a result of his work injury.  On that basis, the compensation judge found that the employer and insurer had not established reasonable grounds to discontinue the employee=s temporary total disability benefits.  The employer and insurer appeal. 

 

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

 

Discontinuance of Temporary Total Disability Benefits

 

The employer and insurer appeal from the compensation judge=s findings that the employee has not reached maximum medical improvement and that he remains restricted from work as a result of his March 28, 2001, injury.  They argue that those findings are not supported by substantial evidence of record and should be reversed. 

 

The employer and insurer first argue that the compensation judge erred in concluding that the employee was not at MMI.  They point to Dr. Bartie=s recommendations in May 2001 for continued conservative treatment, and to Dr. Hipp=s release to return to work by August 2001.  They stress that by October 16, 2001, Dr. Hipp reported on the employee=s significant improvement and concluded that the employee did not need surgery.  They argue that these recommendations were consistent with Dr. Barron=s determination that the employee had reached MMI by September 6, 2001.  In addition, the employer and insurer argue that substantial evidence does not support the compensation judge=s finding that Dr. Hipp and Dr. Kraker have both indicated that the employee was totally disabled from working as of the date of the hearing, March 21, 2002.  They argue that the latest report from Dr. Hipp in the record was dated January 3, 2002, in which Dr. Hipp advised that the employee was totally disabled from January 3 through January 9, 2002.  They also argue that the latest report from Dr. Kraker was dated March 6, 2002, in which he advised the employee to remain off work. 

 

The compensation judge concluded that the employee=s symptoms had worsened since his examination with Dr. Barron, in part due to a fall down steps at his home.  He also cited to the additional medical treatment the employee received since that examination, and the additional treatment options recommended by Dr. Kraker since then, including potential surgery.   In support of his conclusions, the compensation judge relied on the opinions of the employee=s treating doctors, Drs. Hipp and Kraker, in conjunction with the employee=s testimony as to the severity of his symptoms, and he rejected the opinion of Dr. Barron.  In his memorandum, the compensation judge stated that:

 

Dr. Kraker and Dr. Hipp have both continued to recommend that the employee remain off work.  The Compensation Judge credits these opinions, as well as the testimony of the employee as to the severity of his symptoms.  While there were some inconsistencies between the employee=s deposition testimony and the contents of the medical  records, the Compensation Judge finds that the employee testified credibly as to his lack of symptoms following his 1996 fusion surgery, and his consistent and ongoing symptoms following the March 28, 2001 incident.  Thus, the Compensation Judge finds that Mr. Farnham=s ability to earn continues to be impaired as a result of the March 28, 2001 work injury.  Reasonable grounds to discontinue temporary total disability benefits have not been established.

 

We note that it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony, Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985), and this court must uphold a compensation judge=s choice between conflicting expert opinions unless the foundation assumed by the expert in rendering his opinion is not supported by the evidence.  Both Drs. Hipp and Kraker had foundation for their opinions, in that they had treated the employee since his injury, had taken histories from him as to the progression of his symptoms, and had reviewed the various testing performed on the employee.  Dr. Kraker had also treated the employee prior to his work injury.  In view of the record as a whole, including the employee=s medical reports, we conclude that substantial evidence in the record amply supports the compensation judge=s findings that the employee has not yet reached maximum medical improvement and continues to be restricted as a result of his March 28, 2001, injury, and we therefore affirm.

 

The employer and insurer further argue that the compensation judge erred in determining that the employee=s fall at home in late November 2001 was a consequence of his work injury, since no contemporaneous medical records corroborate the employee=s testimony that the fall occurred because his right foot was numb and he could not tell whether his foot was on the step, and since no doctor specifically opined that the fall at home was related to the employee=s work injury.  The employer and insurer argue that the compensation judge failed to address the inconsistency between the employee=s testimony regarding his fall down the steps and his contemporaneous medical records, and failed to explain those inconsistencies in testimony referred to by the compensation judge in his memorandum.  We are not persuaded.  The compensation judge relied on the employee=s testimony that he could not feel the step due to the numbness in his right foot, and we defer to the compensation judge=s assessment of credibility, as it is not the role of this court to make an evaluation of the employee=s credibility and the probative value of his testimony.  Redgate v. Sroga's Standard Service, 421 N.W.2d 729, 734, 40 W.C.D 948, 957 (Minn. 1988).  It is the trier of fact's responsibility to assess the credibility of a witness,  Tolzmann v. McCombs-Knutson Associates, 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989) (citing Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989)), and we affirm the compensation judge=s finding that the employee=s fall at home was a consequence of his work injury.

 

The compensation judge=s findings refer to the employee=s fall at home in December 2001.  However, Dr. Hipp=s chart note of December 4, 2001, states that the employee reported falling on November 28, 2001.  The parties do not dispute the occurrence of the slip and fall, whether it is identified with a November or December date.  We therefore modify Findings Nos. 13 and 20 to state that the employee=s slip and fall injury at home occurred in November 2001 as opposed to December 2001.^[1] 

 

Evidentiary Issues

 

The employee filed an objection to discontinuance in a timely manner to allow for an expedited hearing to be scheduled pursuant to Minn. Stat. ' 176.238, subd. 6.   At the end of the hearing, the employer and insurer requested that the record be held open to allow them to submit a supplemental report from their independent medical expert, Dr. Stephen Barron.   They argued that they had been unable to take the employee=s deposition until approximately one month prior to the expedited hearing, and therefore were delayed in requesting copies of additional medical records discovered through the employee=s deposition.  As a result, the employer and insurer claimed they were unable to provide Dr. Barron with additional medical records, generated since his examination of the employee in September 2001, in order to obtain a supplemental report.

 

The employee objected to the request to hold the record open post-hearing, as benefits had been discontinued and the employer and insurer arguably still had the option of requesting Dr. Barron=s review of the records and then filing another notice of intention to discontinue benefits.  At hearing, the compensation judge advised that by statute, compensation judges are Agenerally restricted to holding the record open to no more than 14 days following a hearing to an Objection to Discontinuance,@ and then denied the employer and insurer=s request to hold the record open.  The employer and insurer argue that they were prejudiced by the compensation judge=s refusal to hold the record open to allow them to obtain a post-hearing medical evaluation and report, especially in view of the employee=s intervening injury in November 2001 when he fell down a step at home.  The employer and insurer therefore request that the Findings and Order be reversed, that the matter be set for a new hearing, and that time be granted to them to schedule another independent medical evaluation to address the employee=s medical condition subsequent to his fall in late November 2001. 

 

Minn. Stat. ' 176.238, subd. 6, referable to expedited hearings held to address an objection to discontinuance or petition to discontinue, provides a very limited exception to the requirement that all evidence must be introduced at hearing.  It states, in part, as follows:

 

Absent a clear showing of surprise at the hearing or the unexpected unavailability of a crucial witness, all evidence must be introduced at the hearing.  If it is necessary to accept additional evidence or testimony after the scheduled hearing date, it must be submitted no later than 14 days following the hearing, unless the compensation judge, for good cause, determines otherwise.

 

AEvidentiary rulings are generally within the sound discretion of the compensation judge.@  Ziehl v. Vreeman Constr. Co., slip op. at 5 (W.C.C.A. October 15, 1991).  Under the circumstances here, we cannot say that the compensation judge abused his discretion in denying the request for the record to remain open post-hearing, and therefore affirm that ruling.

 

The employer and insurer also argue that the compensation judge erred by not agreeing to hear issues of causation and primary liability, and that a new hearing is necessary to address those issues.  During the hearing and in his findings and order, the compensation defined the issue addressed at hearing, as follows:

 

Whether the employer and insurer properly discontinued the employee=s temporary total disability benefits based upon the allegations that the employee had reached maximum medical improvement and no longer had work restrictions related to the March 28, 2001 work injury. 

 

The employer and insurer had originally accepted primary liability for the employee=s injury, but raised that issue and the issue of causation anew at hearing.  However, the compensation judge was not specifically asked to address issues of primary liability and causation at the hearing, nor did the parties specifically discuss expanding the issues to be addressed at hearing.  Furthermore, as required by Minn. Stat. ' 176.238, subd. 6, an expedited hearing on discontinuance Ashall be limited to the issues raised by the notice or petition unless all parties agree to expanding the issues.@  The compensation judge correctly limited the issue to be addressed at hearing, and we find no basis for the employer and insurer=s request for a new hearing to address additional issues.  

 

The employer and insurer also argue that they were prejudiced by the compensation judge=s failure to allow into evidence reports from Human Services, Inc.  The employee objected to that exhibit; the compensation judge determined that the exhibit was not relevant and did not represent proper impeachment, and therefore did not accept those reports into evidence.  The employer and insurer made an offer of proof at hearing, arguing that the exhibit documented an inconsistency in the employee=s deposition testimony, and that it should be considered to address an issue concerning the employee=s credibility.  The employer and insurer argue that they were prejudiced by the compensation judge=s evidentiary ruling.  We are not persuaded.

 

In a workers= compensation hearing, A[e]xcept as otherwise provided by [the statute], when a compensation judge makes an investigation or conducts a hearing, the compensation judge is bound neither by the common law or statutory rules of evidence nor by technical or formal rules of pleading or procedure.@  Minn. Stat. ' 176.411, subd. 1; Minn. R. 1415.2900, subp. 6; Bey v. Oxford Properties, Inc., 481 N.W. 2d 40, 42, 46 W.C.D. 198, 201 (Minn. 1992).  AThe investigation or hearing shall be conducted in a manner to ascertain the substantial rights of the parties.@  Minn. Stat. ' 1765.411, subd. 1.  In this case, the employer and insurer sought to introduce the exhibit to demonstrate a discrepancy in the employee=s testimony as to why the employee attended a counseling consultation.  The subject of the counseling was unrelated to the employee=s work injury, and so the sole purpose of the exhibit was to question the employee=s credibility.  After hearing the parties= positions on the relevance of the exhibit, the compensation judge determined that the offered exhibit was not relevant and did not represent proper impeachment.  Under these circumstances, and based on the record as a whole, we conclude that the compensation judge did not abuse his discretion in disallowing the exhibit into evidence.  We therefore affirm that ruling.  See Ziehl v. Vreeman Constr. Co., slip op. (W.C.C.A. Oct. 15, 1991).