BARBARA A. KUEHL, Employee/Appellant, v. ST. PAUL BANK FOR COOPS. and LIBERTY MUT. INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 1, 2002

                                                                             

HEADNOTES

 

PRACTICE & PROCEDURE - DISMISSAL.  The compensation judge did not err by denying the employee=s motion to dismiss the petition to discontinue benefits or the employee=s motion to continue the hearing based upon an alleged change of issues where the language in the employer and insurer=s pleadings could reasonably be interpreted to challenge the employee=s current condition, not her condition at the time of the injury or at the time of the parties= earlier stipulation.

 

EVIDENCE - MEDICAL EXPERT OPINION; TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  The compensation judge may accept all or only a part of an expert witness's testimony.  Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee=s work injury was not a substantial contributing or aggravating cause of the employee=s ongoing symptoms and temporary partial disability. 

 

Affirmed.

 

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

Compensation Judge: Bernard Dinner

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals the compensation judge=s denial of the employee=s motion to dismiss the petition to discontinue the employee=s temporary partial disability benefits, his refusal to grant the employee a continuance of the hearing, and his findings that the employee=s present condition is related to fibromyalgia, unrelated to her work-related low back injury, and that her work injury was not a substantial contributing or aggravating cause of the employee=s present condition.  We affirm.

 

BACKGROUND

 

On October 11, 1990, Barbara Kuehl, the employee, sustained a low back injury while working for Fulda Turkey Ranch, owned by the St. Paul Bank of Cooperatives, the employer, which was insured for workers= compensation liability by Liberty Mutual Insurance Company, the insurer.  The employee was 40 years old on that date, and earned a weekly wage of $412.16.  The employee fell while unloading a live turkey from a semi-trailer truck, injuring her low back.  She continued working, but experienced ongoing pain.   The employee sought chiropractic treatment on October 15, 1990, and received regular chiropractic treatment from Dr. Mae Beth Linstrom through September 24, 1991.  The employee was able to work on a light duty basis for the employer until April 1991, when the employer=s facility closed.

 

Dr. Linstrom recommended an MRI scan of the employee=s  lumbar spine, which was taken on March 25, 1991, and which showed moderate dehydration and disc space narrowing at L5-S1, a partial thickness posterior annular tear, broad based thickening of the annulus, and no evidence of disc herniation or nerve root impingement.  By May 1991, Dr. Linstrom referred the employee to  an orthopedist, Dr. Walter Carlson.  He first examined her on June 4, 1991, recommended an epidural block, non-steroidal anti-inflammatory medication, and a Warm-N-Form corset; he also restricted the employee from work for one month.  On June 10, 1991, the employee was treated with an epidural block, which provided no pain relief.  On February 21, 1992, the employee underwent another MRI scan, which was interpreted to be negative as it indicated no significant abnormality in her lumbar spine.  On February 28, 1992, Dr. Carlson referred the employee for an evaluation with Dr. Myung Cho, Midwest Pain and Rehabilitation Clinic in Sioux Falls; the employee testified that she attended an inpatient program through McKennan Hospital for seven weeks.^[1]

 

Following the employer=s closure in April 1991, the employer and insurer provided rehabilitation assistance to the employee and paid her temporary total disability benefits from April 3, 1991, through September 7, 1992.  As of September 8, 1992, the employee was hired to work part-time at the Maple Lawn Nursing Home in Fulda, Minnesota, initially earning $4.71 per hour for 25-30 hours per week. On October 1, 1992, the employee underwent a functional capacities evaluation through Dr. Cho=s office, which indicated permanent restrictions for the employee of lifting no more than 24 pounds, lifting 11-24 pounds occasionally, no more than 6 hours of standing, sitting or walking, limited crawling, climbing, crouching, kneeling, and pushing/pulling, and frequent changes of position every 45 minutes.  The employee testified that she has operated under those restrictions ever since October 1992.  She also testified that since her injury in 1990, she has experienced symptoms of low back pain, muscle spasms and pain extending into her left leg, with occasional right leg pain.

 

On January 18, 1993, Dr. Cho issued a report in which he diagnosed a lumbar strain with chronic myofascial syndrome, and expressed his opinion that the employee had reached maximum medical improvement and had sustained 3.5 percent permanent partial disability of the whole body as a result of her injury on October 11, 1990.^[2]  He determined that the employee required no further treatment, but that she should contact his office if she had any acute flare-up.  Dr. Cho=s report was served on the employee on March 17, 1993.  (Judgment Roll.)

 

Two other permanency ratings were assigned by the employee=s previous treating chiropractor and physician.  In a report issued on February 18, 1993, Dr. Linstrom assigned a permanency rating of 14 percent permanent partial disability of the whole body.^[3]  In a report dated May 27, 1993, Dr. Carlson determined that the employee sustained 10.5 permanent partial disability of the whole body.^[4]  There are no medical records in the record indicating treatment for the employee=s condition between May 1, 1993 and May 2001.

 

In June 1994, the parties entered into a stipulation for settlement.  In the stipulation, the employer and insurer admitted that the employee had sustained a work-related injury to her low back on October 11, 1990, and paid permanency benefits based on a rating of 7% permanent partial disability of the body as a whole.     

 

In February 1996, the employee=s work hours were decreased by the Maple Lawn Nursing Home.  Thereafter, through additional job placement services provided by the employer and insurer, the employee resigned her position at the nursing home and commenced work as a pharmacy assistant at Sterling Drug in Worthington, Minnesota, on April 29, 1996, earning $5.00/hour, 40 hours per week, for a weekly wage of $200.00.  She worked there until August 1997, when she was offered her previous assistant activities director position at Maple Lawn Nursing Home.  She returned to work for the nursing home, and worked 32 hours per week, earning $6.66 /hour by October 1998 and $8.22/hour by August 2001.^[5]

 

In 1998, the employer and insurer requested that the employee work with a job placement specialist, in order to obtain employment at a higher weekly wage.  After further discussions among the insurer, QRC, and Maple Lawn Nursing Home, and after review of the labor market, the QRC concluded that she did not anticipate that the employee would secure employment at a significantly higher wage than she earned in her current position.  The parties therefore agreed that no job search would be initiated, and that the employee would pursue additional work hours up to a full-time position at the nursing home.  The employer and insurer continued to pay temporary partial disability benefits through March 28, 2001.

 

On March 8, 2001, the employee was examined by Dr. Stephen Kazi at the request of the employer and insurer.  Dr. Kazi noted a A[h]istory of chronic, widespread musculoskeletal pain syndrome,@ and determined that the employee=s current diagnosis was fibromyalgia and that this condition was not related to the employee=s 1990 work injury to her low back.  Specifically, Dr. Kazi stated:

 

In my opinion, the causation issues in this case are significant.  The reported spine injury was probably a mild contusion of the lumbar spine.  The mechanism of the injury described will usually not result in structural damage to the spine.  The absence of documented contusion, abrasion or other objective evidence of trauma is significant.  Even if there were a contusion of the spine resulting from the fall, it would have healed within two to three weeks. 

 

The chronic pain after the October 11, 1990 incident probably represents some degree of symptom magnification, as well as the underlying condition of fibromyalgia.  The current symptoms clearly do not have any causal relationship to that trauma.  Fibromyalgia is a disease and not an injury.

 

On March 28, 2001, the employer and insurer filed a notice of intention to discontinue workers= compensation benefits pursuant to Minn. Stat. ' 176.238 (NOID), which stated that ADR STEPHEN KAZI STATES IN THE ATTACHED REPORT THAT EMPLOYEE SUFFERS FROM FIBROMYALGIA, AND THIS CONDITION IS NOT RELATED TO THE 10 - 11 - 90 WORK INCIDENT, NO MORE TPD IS DUE.”  An administrative conference was held, on May 7, 2001.  By Order on Discontinuance pursuant to Minn. Stat. ' 176.239, a compensation judge denied discontinuance.  The employer and insurer filed a petition to discontinue benefits which stated that the employee was Aalleging” a low back injury and that ADr. Kazi opined that the Employee=s current disability was unrelated to the alleged October 11, 1990 injury.”  The employee returned to Dr. Carlson for evaluation on May 1, 2001.  Dr. Carlson did not directly address the fibromyalgia diagnosis, but instead stated that it Ais probable that [the employee] has a degenerative disc at the L5-S1 level in the lumbar spine, causing pain, and that appropriate physical therapy and medical treatment would be all that would be necessary to alleviate her symptoms.”  Dr. Carlson did not express an opinion whether the employee=s current condition was causally related to her work injury.

 

A hearing was held on August 23, 2001.  At the beginning of the hearing, the employee moved to dismiss the petition to discontinue on the basis that the employer and insurer=s statement that the employee was Aalleging@ a low back injury was tantamount to a dispute whether the employee sustained a low back injury in 1990, which was contrary to the parties= earlier stipulation that she had sustained such an injury.  The compensation judge denied the motion to dismiss.  The employee also moved for a continuation of the hearing, which the compensation judge also denied.  In Findings and Order served and filed on August 30, 2001, the compensation judge found that the employee=s present condition was not causally related to her 1990 work injury, and allowed discontinuance of the employee=s temporary partial disability benefits.  The employee appeals.

 

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 (2000).  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

 

Motion to Dismiss

 

The employee argues that the compensation judge erred by denying her motion to dismiss the petition to discontinue benefits.  The employee=s motion is based upon her interpretation of the petition to discontinue, that the premise of both Dr. Kazi=s report and the petition was that the employee never sustained a significant low back injury and that the employee=s symptoms were instead related to fibromyalgia.  The employee argues that the employer and insurer are estopped from denying that she sustained a permanent injury because they earlier stipulated that she had sustained a permanent injury.  The compensation judge denied the motion, concluding that Dr. Kazi=s report and the petition to discontinue would be considered only regarding the employee=s current condition.  On appeal, the employee argues that the compensation judge=s decision allowed the employer and insurer to change their argument from whether the employee ever sustained a work injury to whether the employee=s fibromyalgia was an intervening and superseding cause of the employee=s ongoing symptoms.

 

On a Petition to Discontinue benefits, the employer and insurer have the burden of proving by a preponderance of the evidence that the discontinuance of benefits is warranted.  Violette v. Midwest Printing, 415 N.W.2d 318, 322, 40 W.C.D. 445, 453 (Minn. 1987).  Pursuant to Minn. Stat. ' 176.238, subd. 6, an expedited hearing pursuant to a Petition to Discontinue benefits Ashall be limited to the issues raised by the [NOID] or petition [to discontinue benefits] unless all parties agree to expanding the issues.@  Cf. Putnam v. Yellow Freight Systems, No. 471-34-2717 (Oct. 26, 1995) (pursuant to Minn. Stat. ' 176.239, subd. 6, unless the parties agree otherwise, the scope of an administrative decision on discontinuance of benefits is to be limited to the issues presented in the NOID).  This court has repeatedly held that where the expedited hearing procedures apply, discontinuance on grounds other than those specifically alleged in the petition is an improper expansion of the issues and requires reversal.  See, e.g., Rauer v. Chrysler Corp., slip op. (W.C.C.A. August 31, 1999); Nyreen v. Industrial Custom Prods., slip op. (W.C.C.A. April 23, 1999);  Bui v. Hitchcock Indus., slip op. (W.C.C.A. Dec. 4, 1995); Pierce v. Northwoods Log Homes, slip op. (W.C.C.A. April 26, 1994). 

 

On March 28, 2001, the employer and insurer filed a NOID, which stated that ADR STEPHEN KAZI STATES IN THE ATTACHED REPORT THAT EMPLOYEE SUFFERS FROM FIBROMYALGIA, AND THIS CONDITION IS NOT RELATED TO THE 10 - 11 - 90 WORK INCIDENT, NO MORE TPD IS DUE.@  The petition to discontinue states that ADr. Kazi opined that the Employee=s current disability was unrelated to the alleged October 11, 1990 injury.@  The employee argues that the employer and insurer=s defense presented by the NOID and the petition was that the employee had not sustained a low back injury at all, but that her current condition instead was due to fibromyalgia.  The employee argues that the parties= earlier stipulation that the employee had sustained a permanent low back injury precluded this defense.

 

The compensation judge agreed that the employer and insurer could not now claim that the employee never had sustained a work-related low back injury, but concluded that the employer and insurer were arguing that the employee=s current condition was not related to her low back injury.  The employee claims that this is a change from their position in the pleadings.  We disagree.  The language in the pleadings could reasonably be interpreted to challenge the employee=s current condition in 2001, not her original condition at the time of her injury in October 1990 or her condition at the time of the 1994 stipulation.  Therefore, the compensation judge did not err by denying the employee=s motion to dismiss.

 

In addition, after being informed of the compensation judge=s interpretation of the pleadings, the employee requested a continuance based upon the inferred change in the employer and insurer=s position and her belief that the employer and insurer were challenging primary liability.  The employee requested a continuance of the hearing to allow her to consult Dr. Carlson again and to follow up with Dr. Carlson=s recommendation that she undergo an additional MRI scan.  The employer and insurer argued that the employee had been served with Dr. Kazi=s report when it was received, that they petitioned to discontinue benefits based on the diagnosis of fibromyalgia, and therefore no Asurprise@ existed as to the purpose of the hearing.  The compensation judge noted that the employee=s attorney had been served with Dr. Kazi=s report approximately six weeks prior to the hearing, advised the parties that he agreed that no surprise existed, and denied the motion for a continuance.^[6]  This decision was within the compensation judge=s discretion, and he did not err by denying the employee=s motion for a continuance of the hearing.

 

Temporary partial disability

 

In order to demonstrate entitlement to temporary partial disability, an employee must demonstrate a work-related physical disability and an actual loss of earning capacity that is causally related to the disability.  Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).  The compensation judge relied upon Dr. Kazi=s opinion that the employee=s current physical condition and symptoms were a result of fibromyalgia and were not related to her work injury.  The employee argues that Dr. Kazi=s opinion ignores the employee=s admitted work injury in 1991.  The compensation judge specifically stated that he considered Dr. Kazi=s opinion only in regard to the employee=s current condition.  A factfinder generally "=may accept all or only a part of any witness'[s] testimony.="  Proffit v. Minnesota Harvest Apple Orchard, 48 W.C.D. 215, 219-20 (W.C.C.A. 1992) (quoting City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980)), summarily aff'd (Minn. Mar. 3, 1993).

 

The employee also disputed the symptoms and findings by Dr. Kazi, testifying that she does not have a history of fatigue, headaches, sleep disturbances, nor pain in her elbows and shoulders, all noted in Dr. Kazi=s report.  She also testified that Dr. Kazi pressed hard on her hips, shoulder blades and knees to test her level of pain at these trigger points and that this pressure caused pain, but that these are not areas where she usually experiences pain, contrary to Dr. Kazi=s medical report.  However, the compensation judge cited to various reports of sleep disturbance, arm pain, elbow pain, morning stiffness in the low back, depression, and muscle spasm in the employee=s previous medical records.  The compensation judge further noted that Dr. Carlson=s report does not state whether the employee=s low back work injury is a substantial contributing cause of the employee=s ongoing restrictions and temporary partial disability. 

 

An employer and insurer petitioning to discontinue benefits have the initial burden to establish the evidentiary basis for the petition.  Thereafter, the burden of proving entitlement to benefits is placed on an employee.  King v. Farmstead Foods, 45 W.C.D. 292, 294 (W.C.C.A. 1991), summarily aff'd (Minn. Oct. 1, 1991).  "[I]n order to recover workers' compensation benefits, the employee must establish that his work-related injury is a substantial contributing factor to his current disability."  Steinhaus v. F.B. Clements, 47 W.C.D. 22, 30 (W.C.C.A. 1992). The compensation judge reviewed the record and found that the employee had not shown that the employee=s work injury was a substantial contributing or aggravating cause of the employee=s ongoing symptoms and temporary partial disability.   Substantial evidence supports this finding, and we affirm.