ARVID L. FRANSON, Employee, v. SPECIAL SCH. DIST. #1, SELF-INSURED/SEDGWICK CLAIMS MANAGEMENT SERVS., Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 28, 2002

                       

HEADNOTES

 

APPEALS - TRANSCRIPT.  Where no transcript of the proceeding could be prepared due to a defective computer disc, the Statement of the Proceeding approved by the compensation judge in accordance with the procedure set forth in Minn. R. Civ. App. Pro. 110.03 and Moulsolf v. Pierz Marine, Inc., 51 W.C.D. 397 (1994), adequately protected the interests of the parties and was sufficient to permit appellate review on the facts of this case.

 

CAUSATION - INTERVENING CAUSE.  Substantial evidence supports the com­pensation judge=s determination that the employee=s September 1999 work-related low back injury, in combination with his non-work thoracic spine injury on November 19, 2000, was a substantial contributing cause of the employee=s temporary total disability after April 8, 2001.

 

PERMANENT PARTIAL DISABILITY - LOW BACK.  Substantial evidence supports the compensation judge=s award of a 10 percent permanent partial disability secondary to his lumbar spine injury.

 

MEDICAL TREATMENT & EXPENSE - SUBSTANTIAL EVIDENCE.  Based on the recommendations of two of the employee=s treating physicians, the compensation judge properly approved the employee=s request for a pain management program evaluation to determine the appropriateness of such treatment.

 

Affirmed.

 

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

Compensation Judge: Gary M. Hall

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The self-insured employer appeals the procedure established by the Workers= Com­pensation Court of Appeals to recreate the missing transcript and appeals the compensation judge=s award of workers= compensation benefits to the employee.  We affirm.

 

PROCEDURAL BACKGROUND

 

Arvid L. Franson, the employee, sustained a personal injury to his low back and right shoulder on September 15, 1999, while working for Special School District #1, the employer, then self-insured for workers= compensation liability.  The self-insured employer voluntarily commenced payment of temporary total and temporary partial disability benefits.  In September 2000, the em­ployer filed a Notice of Intention to Discontinue (NOID) workers= compensation benefits contending the employee had reached maximum medical improvement (MMI) effective July 14, 2000, and agreeing to pay temporary total disability benefits for an additional 90 days through October 12, 2000.  Thereafter, the employer commenced payment of impairment compensation for a 3.5 percent whole body disability for the low back injury and a 2 percent whole body disability for the right shoulder injury.

 

The employee filed an Objection to Discontinuance which was heard on December 12, 2000, before Compensation Judge Rolf Hagen.  In a Findings and Order filed December 21, 2000, the compensation judge found the employee had multi-level degenerative disc disease secon­dary to the September 15, 1999 work injury.  The judge further found the employee had not reached MMI and awarded temporary total disability benefits through November 12, 2000, when the employee returned to work at a part-time delivery job for a dental laboratory.  These findings were not appealed.  On November 19, 2000, the employee injured his thoracic spine in a slip and fall accident at a private residence.  The employee was unable to continue his part-time job following this injury and stipulated the fall was a superseding, intervening cause of his inability to work up to April 9, 2001.

 

In June 2001, a hearing was held before Compensation Judge Gary M. Hall on a claim petition filed by the employee.  Among the issues at hearing was whether the non-work injury of November 19, 2000, continued to be a superseding intervening cause of the employee=s total dis­ability after April 9, 2001.  The employee testified at the hearing, together with Julie Horak, the employee=s qualified rehabilitation consultant (QRC) and Polly Ullrich, a representative of the employer.  In a Findings and Order filed August 20, 2001, the compensation judge concluded the employee=s personal injury was a substantial contributing cause of his disability from April 9, 2001, and of the employee=s need for a pain management evaluation.  The compensation judge further found the employee had not reached MMI pending completion of a pain management evaluation and awarded benefits for a 10 percent whole body disability, less amounts previously paid.  The self-insured employer appealed the judge=s Findings and Order.

 

The court reporter who recorded the testimony then advised the court and parties she could not prepare a transcript due to the inadvertent use of a defective computer disk.  By Order dated September 26, 2001, this court ordered the appellant to prepare a statement of the proceedings from the best means available, including recollection, and serve same on the respondent and file it with the Office of Ad­ministrative Hearings.  The respondent was given the opportunity to serve objections or propose amendments and the compensation judge was then directed to prepare an approved Statement of the Proceedings.  The employee and the employer each filed a Statement of Proceed­ings.  The compen­sation judge issued his Order Approving Statement of Proceedings on November 9, 2001.  In that order, the compensation judge stated he adopted the respondent=s statement of the proceedings with certain additions.

 

FACTUAL BACKGROUND

 

Following his September 15, 1999 injury, the employee saw a chiropractor for a short period of time.  He then saw Dr. Thomas Hennessey on November 17, 1999, complaining of right shoulder and low back pain.  Dr. Hennessey diagnosed possible discogenic low back pain and a musculoligamentous right shoulder injury.  The doctor ordered an MRI scan which showed degen­erative disc disease at L4-5 and L5-S1 with bulging of the L5-S1 disc without nerve root com­pression.  Dr. Hennessey then ordered a series of physical therapy sessions and performed a facet joint block at L4-5 and L5-S1, which failed to relieve the employee=s pain.

 

The employee treated with Dr. Peter Daly for his shoulder injury.  On February 2, 2000, Dr. Daly diagnosed a partial thickness rotator cuff tear and degenerative joint disease of the right shoulder.  The doctor prescribed a series of cortisone injections of the employee=s shoulder which substantially relieved his pain.  Dr. Daly last saw the employee on April 26, 2000, when he placed the employee on a 50-pound lifting restriction due to the shoulder injury.  In March 2000, the employee had entered a work hardening/work conditioning program at Fairview Rehabilitation Services.  Based upon the employee=s attendance in the program, the employee=s occupational therapist developed a task evaluation which set forth restrictions for various standard tasks. 

 

On May 22, 2000, the employee was examined by Dr. Robert Barnett, Jr. at the request of the employer.  The doctor diagnosed a chronic subacromial impingement of the right shoulder with degenerative acromioclavicular joint arthrosis and a partial tear of the supraspinatus tendon, and degenerative lumbar lordosis with non-radicular mechanical low back pain.  The doctor reviewed the documents from the employee=s work hardening program and prepared an R-33 form setting forth restrictions.  Within those restrictions, Dr. Barnett opined the employee was able to work eight hours a day.  The doctor concluded the employee sustained a 2 percent whole body dis­ability with respect to the right shoulder injury and a 3.5 percent whole body disability for the lumbar pain syndrome.

 

In October 1999, the employee was given a clerical job by the employer as part of its transitional job program for injured employees who are unable to return to their pre-injury jobs.  The employee performed this job for approximately six months.  When the transitional job ended, the employee attempted to return to his pre-injury job in the paint department but was rejected for employment because of the restrictions placed upon him by Dr. Hennessey and Dr. Daly.  In April 2000, the employee commenced a job search with the assistance of his qualified rehabilitation con­sultant, Julie Horak.  On October 4, 2000, Dr. Hennessey released the employee to return to work eight hours a day, with lifting restrictions consistent with the R-33.  In early November 2000, the employee began a job for a dental laboratory.  On November 19, 2000, the employee slipped and fell on ice at a private residence suffering a fracture of a thoracic vertebrae.  The employee was unable to continue working after this injury and left his job at the dental laboratory.

 

The employee returned to see Dr. Hennessey on November 27, 2000, gave a history of his fall on November 19 and reported his thoracic pain was then much more severe than his lum­bar pain.  A discogram on December 19, 2000, showed an annular tear at L4-5 with pain repro­duc­tion, and a degenerated disc at L5-S1 with pain reproduction.  Dr. Hennessey referred the em­ployee to his colleague, Dr. John E. Sherman, for a surgical consultation.  The doctor felt the em­ployee was less than an ideal candidate for lumbar arthrodesis.  The employee returned to see Dr. Hennessey on April 9, 2001, with continuing complaints of low back and thoracic pain.  The doctor took the em­ployee off work and the employee remained off work through the date of the hearing.  The doctor again referred the employee to Dr. Sherman, who examined him on May 3, 2001.  The doctor con­cluded a component of the employee=s symptoms were discogenic, but there were also psychosocial issues involved.  Dr. Sherman recommended the employee attend a pain clinic.

 

Dr. Hennessey=s deposition was taken on May 16, 2001.  His diagnosis was mechani­cal low back pain with an annular tear at L4-5, a herniated disc at L4-5 and a degenerated disc at L5-S1 with annular tears and facet arthrosis.  The doctor testified that as of April 9, 2001, the employee was totally disabled caused equally by his work-related low back injury and the non-work thoracic injury.  Dr. Hennessey rated the employee as having a 10 percent whole body disability due to his low back injury.^[1]  Finally, the doctor testified the employee was not at maximum medical improve­ment because he needed to participate in a pain clinic. 

 

DECISION

 

The self-insured employer appeals the compensation judge=s award of benefits to the employee, and seeks a new trial due to the unavailability of a transcript.

 

1.  Unavailability of a Transcript

 

No transcript of the testimony at the hearing before the compensation judge was avail­able in this case.  Accordingly, on September 26, 2001, this court issued an Order Regarding Prepar­ation of Transcript.  The appellant was directed to prepare a statement of the proceedings from the best means available, including recollection, serve the same on the respondent and file the statement with the Office of Administrative Hearings.  Within 30 days thereafter, the respondent was given the opportunity to serve objections or propose amendments and serve and file the same.  The compensation judge was then directed to prepare and approve a Statement of the Proceedings to be served on all the parties and filed with the court.  This procedure is taken from Minn. R. Civ. App. Pro. 110.03 which provides:

 

If no report of all or any part of the proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may . . . prepare a statement of the proceedings from the best available means, including recollection.  The statement shall be served on the respon­dent, who may served objections or propose amendments . . . .  [T]he statement and any objections or proposed amendments shall be submitted to the trial court and the statement as approved by the trial court shall be included in the record.

 

In Moulzolf v. Pierz Marine, Inc., 51 W.C.D. 397 (1994), this court adopted this procedure, holding the procedure set forth in the appellate rules adequately serves and protects the interests of the liti­gants, the Office of Adminis­trative Hearings and the Workers= Compensation Court of Appeals.

 

The self-insured employer contends the unavailability of the hearing transcript so prejudices the appellant that a new trial is required.  It argues the compensation judge=s Statement of the Proceedings omits or ignores significant impeachment testimony of the employee.  Without a transcript, the appellant argues, this court is unable to review the compensation judge=s factual determinations.  We disagree.

 

In this case, there was no prolonged lapse of time which would dim the parties= or the judge=s recollection of the proceedings.  Typically, compensation judges take detailed notes of the testimony.  In his Statement of Proceedings, the compensation judge stated he relied, in part, on his memory of the proceedings and his trial notes.  There are extensive medical exhibits including the records of the treating doctors, and a deposition of Dr. Hennessey.  Although the testimony of the QRC is unavailable, her reports are in evidence.  The testimony of the employer=s vocational expert, Polly Ullrich, related to the em­ployee=s jobs with the employer which are of only minimal relevance to this appeal.  We conclude the record is adequate to permit an appellate review.  Accordingly we find no basis in this case to order a retrial.

 

2.  Superseding, Intervening Injury

 

The employee suffered a non-work-related thoracic spine injury on November 19, 2000, when he slip­ped and fell on ice.  The employee stipulated this injury was a superseding and intervening cause of his disability from November 19, 2000 through April 8, 2001.  Thereafter, the compensation judge found the September 15, 1999 injury was a substantial and contributing cause of the employee=s total disability.  The self-insured employer appeals this finding contending it is not supported by substantial evidence.  We disagree.

 

An employee need not prove that the employment was the sole cause, only a substan­tial contributing cause of the disability for which benefits are sought.  Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989).  Questions of medical causation fall with­in the province of the compensation judge.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994).

 

Dr. Hennessey opined that as of April 9, 2001, the employee was totally disabled and his inability to work was caused both by the work-related low back injury and the non-work thoracic injury.  The doctor based this opinion, in part, on the employee=s history given the doctor on April 9 of alternating thoracic and low back pain.  The doctor=s examination on that date confirmed tender­ness over the lower spine and mid to upper thoracic spine.  The employee testified he had significant pain in both his thoracic and lumbar areas and felt the pain kept him from working.  The compen­sation judge could reasonably rely on the doctor=s and the employee=s testimony in concluding the work injury was a substantial and contributing cause of the employee=s total disability after April 9, 2001.  The appellant, however, contends Dr. Hennessey=s opinion lacks foundation and could not be relied upon by the compensation judge.  Further, the appellant contends it is not reasonable to conclude the employee was able to return to work in October 2000, but cannot do so now.  The only reasonable explanation for the employee=s current inability to work, the self-insured employer ar­gues, is the November 19, 2000 thoracic spine injury.  We are not persuaded.

 

Dr. Hennessey released the employee to return to work, subject to restrictions, on October 4, 2000.^[2]  On November 27, 2000, the employee told Dr. Hennessey about his fall and stated his thoracic pain was then much worse than his low back pain.  A discogram on December 19, 2000, reproduced lumbar pain at both L4-5 and L5-S1.  On January 10, 2001, the doctor=s examination revealed both thoracic and lumbar tenderness with limited range of motion.  On January 25, 2001, Dr. Sherman felt the employee=s thoracic spine would continue to heal without further intervention.  However, the doctor noted the employee=s low back symptoms continued.  By April 9, 2001, the employee told Dr. Hennessey the thoracic and lumbar pain alternately worsened and improved and he felt he was unable to work because of his ongoing symptoms.

 

Contrary to the appellant=s arguments, the medical evidence supports a conclusion that the employee=s thoracic problems gradually improved such that the non-work injury no longer was a superseding, intervening cause of the employee=s disability.  Dr. Hennessey=s recorded histories support his conclusion that by April 9, 2001, the employee=s inability to work was caused by a com­bination of his work and non-work injuries.  The compensation judge adopted this opinion and the judge=s decision is supported by substantial evidence.  The judge=s decision is affirmed.

 

3.  Permanent Partial Disability Benefits

 

The appellant appeals the compensation judge=s award of a 10 percent whole body disability secondary to his lumbar spine injury.^[3]  They argue the award is unsupported by substantial evidence. We disagree.  Dr. Hennessey rated the employee with a 10 percent disability under Minn. R. 5223.0390, subp. 3.C.(2).^[4]  Dr. Hennessey=s records document complaints of pain and stiffness in the lumbar spine substantiated by objective clinical findings of decreased range of motion.  The 1999 MRI scan documented degenerative disc disease at L4-5 and L5-S1.  The judge=s award of a 10 percent permanent partial disability is amply supported by the record and is affirmed.

 

4.  Pain Management Program Evaluation

 

The compensation judge approved the employee=s request for an evaluation for a pain management program.  The self-insured employer appeals this award contending it is unsupported by substantial evidence.  The appellant argues the only evidence regarding the appropriateness of the program was offered by Julie Horak, the employee=s QRC, who testified the program was inap­propriate for the employee and he would be unlikely to complete it.  Accordingly, the appellant asks this court to reverse the compensation judge=s award.  We decline to do so.

 

Both Dr. Sherman and Dr. Hennessey recommended the employee participate in a pain management pro­gram.  The compensation judge did not conclude a pain management program was reasonable and necessary treatment.  Rather, the judge ordered the self-insured employer pay for an evaluation to determine whether such treatment would be reasonable and necessary to cure or relieve from the effects of the personal injury.  This conclusion is supported by the testimony of Dr. Hennessey and is, accordingly, affirmed.

 

5.  Maximum Medical Improvement

 

The compensation judge found the employee had not yet reached maximum medical improvement pending an evaluation for pain management treatment.  The appellant did not brief this issue and it is, therefore, waived.  See Minn. R. 9800.0600, subp. 2.