MICHAEL R. JOHNSON, Employee, v. VIKING AUTOMATIC SPRINKLER and ST. PAUL FIRE & MARINE INS. CO., Employer-Insurer, and NEW MECH COS., INC., and TRANSCONTINENTAL INS. CO., Employer-Insurer/Appellants, and MERCY HOSP., TWIN CITY SPRINKLER FITTERS HC PLAN and ORTHOPAEDIC PARTNERS, PA, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 29, 2002

 

HEADNOTES

 

PRACTICE & PROCEDURE - ADMISSION OF MEDICAL EVIDENCE.  Where the compensation judge erred in reopening the record to receive an expert medical opinion without allowing the employer the opportunity to cross-examine the expert, and where the judge also erred in receiving a different report and deposition testimony without allowing adequate argument and evidence as to timeliness and/or the propriety of granting an extension pursuant to Minn. Stat. ' 176.155, and where the judge expressly relied on the evidence in question in deciding liability issues, remand was necessary for further proceedings.

 

NOTICE OF INJURY - GILLETTE INJURY.  Where the compensation judge apparently decided a notice of injury issue using an incorrect standard, remand was required for reconsideration.

 

Reversed and remanded.

 

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

Compensation Judge: Jennifer Patterson

 

OPINION

 

DEBRA A. WILSON, Judge

 

New Mech Companies, Inc., and its insurer appeal from the compensation judge=s admission of certain expert opinions into evidence and from the judge=s decision as to notice of injury.  We reverse and remand for further proceedings consistent with this opinion.

 

BACKGROUND

 

The employee began a five-year sprinkler fitter apprenticeship in 1987 or 1988, working for several different employers during this period, including Viking Automatic Sprinkler [Viking].  Sometime after completion of his apprenticeship, the employee was employed as a fire inspector for about fifteen months before commencing a full-time sprinkler fitter foreman job, for Viking, in late June of 1997.  The employee=s job duties included substantial use of hand tools; most of the work was performed overhead.

 

On February 19, 1998, after a particularly strenuous day at work, the employee noticed soreness in his right elbow, which worsened over time and was ultimately diagnosed as lateral epicondylitis.  Treatment for this condition included medication, use of a tennis elbow splint, and steroid injections.  For the most part, the employee performed his usual job duties.  Restrictions for his elbow condition were only in place for a short period, and he apparently missed no time from work due to his symptoms.

 

In October of 1998, the employee quit his job with Viking, for reasons unrelated to his right elbow condition, beginning a job with New Mech Companies [New Mech], as a general foreman, the very next day.  After about six months, he resumed the same kind of sprinkler fitter work that he had performed with Viking, also making some sales calls.  According to the employee, the sprinkler fitter work at New Mech was slower paced than it had been at Viking.  However, he continued to experience at least intermittent right elbow pain, for which he sought and received repeated injections.  Eventually, on March 27, 2000, after a flare-up, the employee=s physician restricted the employee=s use of his right arm, pending recommended surgery.  New Mech could not accommodate the restrictions, and the employee remained off work from March 27, 2000, through May 2, 2000, the date he underwent a lateral release and debridement procedure on his right elbow.  In the interim, in April of 2000, the employee served and filed a claim petition, seeking various benefits from Viking due to his right elbow condition.  Viking admitted that the employee had injured his right elbow on February 19, 1998, but alleged that the injury had resolved without residual disability.  The employee returned to work for New Mech in July of 2000 and eventually resumed his usual duties as a sprinkler fitter foreman.

 

In August of 2000, Dr. Mark Friedland examined the employee on behalf of Viking  and its insurer, and Viking served a copy of Dr. Friedland=s resulting report on the employee, by mail, on August 17, 2000.  About two months later, in early October 2000, Viking and its insurer filed a motion to join New Mech and its insurer as parties to the proceedings.  Attached to the petition was the report of Dr. Friedland, who indicated that the employee=s right elbow condition had been aggravated by the employee=s work activities with New Mech.  Viking=s motion was granted and joinder was ordered on November 16, 2000.

 

On May 15, 2001, Dr. Friedland was deposed.  Counsel for all parties appeared at and took part in the deposition.

 

When the matter came on for hearing before a compensation judge on May 18, 2001, New Mech and its insurer for the first time objected to the report and deposition testimony of Dr. Friedland, contending that Dr. Friedland=s report had not been served on the employee within the time specified by Minn. Stat. ' 176.155.  Following a brief discussion, the compensation judge orally overruled New Mech=s objection, citing two Minnesota Supreme Court cases as requiring her to accept the disputed evidence.  The hearing proceeded and, at the end of testimony, the compensation judge closed the record.  Upon returning to his office that same day, the employee=s attorney discovered that a report from Dr. Jon Wallestad, one of the employee=s treating physicians, had been delivered to his office by mail while he was at the hearing.  The employee=s attorney notified the other parties, and Viking subsequently asked the compensation judge to reopen the record for submission of Dr. Wallestad=s report.  New Mech and its insurer objected to this request.

 

The compensation judge issued her decision on July 2, 2001.  In that decision, the judge again addressed the admissibility of Dr. Friedland=s report and deposition testimony, but this time she relied on the Minnesota Rules of Civil Procedure to find the evidence admissible under Minn. Stat. ' 176.155.  The judge also found that it was appropriate to reopen the record to receive the report of Dr. Wallestad.  In findings more directly relevant to the substantive issues, the compensation judge concluded that the employee had sustained a Gillette-type^[1] injury on March 27, 2000, while employed by New Mech, and that New Mech had received timely notice of that injury.  Liability for the benefits at issue was apportioned 25% to Viking and 75% to New Mech, with New Mech designated as the paying agent.  As support for her decisions on liability, the compensation judge expressly relied on the opinions of Drs. Friedland and Wallestad.  New Mech and its 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.

 

A[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers= Compensation Court of Appeals] may consider de novo.@  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

 

1.  Dr. Friedland=s Report

 

Minn. Stat. ' 176.155 reads in relevant part as follows:

 

Subdivision 1.  Employer=s physician.  The injured employee must submit to examination by the employer=s physician, if requested by the employer, and at reasonable times thereafter upon the employer=s request. . . .  The examination shall be completed and the report of the examination shall be served on the employee and filed with the commissioner within 120 days of service of the claim petition

 

No evidence relating to the examination or report shall be received or considered by the commissioner, a compensation judge, or the court of appeals in determining any issues unless the report has been served and filed as required by this section, unless a written extension has been granted by the commissioner or compensation judge.  The commissioner or a compensation judge shall extend the time for completing the adverse examination and filing the report upon good cause shown.  The extension must not be for the purpose of delay and the insurer must make a good faith effort to comply with this subdivision.  Good cause shall include but is not limited to:

 

(1) that the extension is necessary because of the limited number of physicians or health care providers available with expertise in the particular injury or disease, or that the extension is necessary due to the complexity of the medical issues, or

 

(2) that the extension is necessary to gather additional information which was not included on the petition as required by section 176.291.

 

(Emphasis added.)  In the present case, the affidavit of service on the employee=s claim petition indicates that the claim petition was served on April 18, 2000, and the affidavit of service relevant to Dr. Friedland=s report indicates that the report was served on August 17, 2000, one day beyond the 120-day period specified by Minn. Stat. ' 176.155.  Accordingly, New Mech contended at hearing that Dr. Friedland=s report could not be considered by the judge under the clear terms of the statute.  The compensation judge, however, orally ruled as follows:

 

THE COURT:   The Supreme Court case Bay (phonetic) and Scalf case, S-C-A-L-F both direct me to receive the report.  The question is if there=s any prejudice, should I hold the record open for other parties in the case to present additional evidence.  Is there anything that you want to put in there with respect to the court=s [sic] opinions or records?

 

Viking=s attorney then pointed out that the service letter relative to the employee=s claim petition was dated April 25, 2000, meaning that an IME report served on August 16, 2000, would be timely.  New Mech=s attorney asked permission to respond, but the compensation judge allowed very little additional discussion before reiterating that she was admitting both Dr. Friedland=s report and his deposition into evidence based on her understanding of supreme court precedent.  However, in her decision, issued on July 2, 2001, the compensation judge determined that Dr. Friedland=s report was in fact timely served under the authority of Minn. R. Civ. P. 6.05, which allows an additional three days for service in certain circumstances.^[2]  We conclude that the issue must be remanded for further proceedings.

 

We note initially that this court has expressly disallowed use of Minn. R. Civ. P. 6.05 in cases pertaining to timely filing of documents.  See, e.g., Bluhm v. Ryder Trucks, 38 W.C.D. 498 (W.C.C.A. 1985); Oas v. Minnesota Mutual Life Ins. Co., 38 W.C.D. 267 (W.C.C.A. 1985); Carlisle-Palmer v. Sammy=s Pizza, slip op. (W.C.C.A. July 23, 1993);  Pawlenty v. Cub Foods, slip op. (W.C.C.A. June 4, 1991).  Moreover, we have been unable to find any case in which we have approved use of the rule to extend statutory deadlines for service of documents, and we are not prepared to rule on the question here.  The parties had no notice that applicability of the rule was at issue; at hearing, the compensation judge purported to base her ruling on Bey v. Oxford Enterprises, 481 N.W.2d 40, 46 W.C.D. 198 (Minn. 1992), and Scalf v. LaSalle Convalescent Home, 481 N.W.2d 364, 46 W.C.D. 283 (Minn. 1992).  Furthermore, we think that the compensation judge should have allowed the parties to argue, and present evidence, as to whether there was good cause for an extension of the time to serve Dr. Friedland=s report, pursuant to the supreme court=s holding in Bey.^[3]  Finally, as pointed out by Viking=s counsel at hearing, there was evidence in the record -- specifically, the service letter attached to the claim petition -- which, if accepted by the judge, would indicate that service of Dr. Friedland=s report was in fact timely,^[4] without any need for either an extension or application of the Rules of Civil Procedure.

 

The compensation judge expressly relied on Dr. Friedland=s opinion in reaching her conclusion as to New Mech=s liability.  For all the reasons noted above, we conclude that the matter must be remanded to the judge for reconsideration as to the admissibility of that opinion, and, if appropriate, reconsideration of the liability issues without reference to that opinion.  The judge should allow the parties to submit argument and evidence as to timeliness and good cause for an extension, if requested.

 

2.  Dr. Wallestad=s Report

 

As previously indicated, the compensation judge reopened the record to admit the report of Dr. Wallestad, received by the employee=s attorney in the mail on the day of hearing, over the objection of New Mech and its insurer.  In her decision, the compensation judge found as follows on this issue:

 

4.  On May 8, 2001, the employee=s attorney wrote to Dr. Wallestad requesting an updated medical - legal report.  Dr. Wallestad responded to this request by writing the May 14, 2001 report which was received in Attorney Cody=s office on May 18, 2001.  This report came to the attention of Attorney Cody on the date of hearing, after the hearing was over.  Attorney Cody notified the other attorneys that he had received the report.  Attorney Hartman, on May 18, 2001, moved for the admission of Dr. Wallestad=s May 14, 2001 report.  Attorney Vehanen objected to the admission of this report by letter dated May 23, 2001.  In the interest of justice and to serve the strong policy in workers= compensation cases of deciding disputes based upon the merits of the case and all relevant evidence, the record must be re-opened to receive Dr. Wallestad=s May 14, 2001 report, because it is relevant to the issues in dispute among the parties.  The objection of New Mech and its insurer to receipt of the May 14, 2001 report of Dr. Wallestad on the ground that, although it was available on May 15, 2001, it was not available until after the formal hearing adjourned, is hereby overruled.  Dr. Wallestad=s May 14, 2001 report has been received as Viking Exhibit 2.

 

Again, the compensation judge expressly relied on Dr. Wallestad=s opinion in deciding the question of New Mech=s liability.

 

We do not accept New Mech=s argument that the compensation judge had no authority to reopen the record.  However, having decided to accept the late report, the compensation judge should have offered to hold the record open long enough to give New Mech the opportunity to take the doctor=s deposition.  Scalf v. LaSalle Convalescent Home, 481 N.W.2d 364, 46 W.C.D. 283 (Minn. 1992).  Because New Mech was not given this opportunity, we reverse and remand for this purpose.  If New Mech chooses to take Dr. Wallestad=s deposition, the compensation judge should reconsider the issues in light of that evidence.

 

3.  Notice of Injury

 

New Mech and its insurer contended in part that the employee failed to prove that New Mech had timely notice or actual knowledge of injury as specified by Minn. Stat. ' 176.141.  They argued that they had no notice or knowledge of the alleged Gillette injury until Viking served them with the motion for joinder, which included a copy of Dr. Friedland=s report, on October 9, 2000, more than 180 days after the injury date found by the judge.  In her finding on this issue, the compensation judge wrote as follows:

 

25.  Where an employee has ongoing symptoms after a work injury and continues to work at a job placing a stress on the injured body part above and beyond that of ordinary life, an employee cannot be expected to determine when a minute trauma injury has occurred until a medical doctor has expressed the opinion that a new injury has occurred as a minute trauma injury, Swenson v. Calmech (1993) 50 W.C.D. 1 (Held: the 180[-day] notice period ran from the date of an IME report which was the first time a doctor had expressed the opinion that a minute trauma injury has occurred).  In this case, Dr. Friedland set out the minute trauma causal relationship opinion in his August 11, 2000 report.  On October 9, 2000, a Petition for Joinder of New Mech and its insurer was served and filed by Viking and its insurer.  The 180 days for giving statutory notice of a work injury ran from the August 11, 2000 Dr. Friedland report.  New Mech and it[s] insurer had timely notice of the claim that a minute trauma injury occurred on March 27, 2000.

 

We are again compelled to reverse and remand the matter for reconsideration.  Contrary to the compensation judge=s apparent conclusion, the Swenson case does not express any rule of law on this issue; rather, the court in Swenson was careful to indicate that it was analyzing the judge=s decision as a fact issue, Aunder the peculiar facts and circumstances@ of that case.  Swenson, 50 W.C.D. at 12.  As a general rule, the time to give notice begins to run not from the issuance of a medical report on causation Abut from the time it becomes reasonably apparent to the employee that the injury has resulted in, or is likely to cause, a compensable disability.@  Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 867, 40 W.C.D. 270, 274 (Minn. 1987); see also Jones v. Thermo King, 461 N.W.2d 915, 43 W.C.D. 458 (Minn. 1990) (statute of limitations).  Because the compensation judge evidently misconstrued the applicable standard, we remand the matter for reconsideration and further findings.