ROZANNE MORRIS, Employee/Appellant, v. METHODIST HOSP., SELF-INSURED/GALLAGHER BASSETT SERVS., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 1, 2002

                                                                             

HEADNOTES

 

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the treating doctor provided alternative ratings of permanent partial disability to the thoracic spine and where the IME=s opinion was that the employee=s bladder condition was not related to her work injury, substantial evidence supports the decision of the compensation judge as to the extent of permanent partial disability.

 

PRACTICE & PROCEDURE - MATTERS AT ISSUE; MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Where the issue of reasonableness and necessity of medical care arose solely as an element of a defense to the permanent partial disability claim and where the compensation judge did not accept the defense, the finding on reasonableness and necessity is vacated.

 

MEDICAL TREATMENT & EXPENSE - HOUSEKEEPING SERVICES.  Where it was not shown that housekeeping services were necessary to cure and relieve from the effect of the injury, substantial evidence supports the denial of requested services by the compensation judge.

 

Vacated in part and affirmed as modified.

 

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

Compensation Judge:  Kathleen Behounek.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the decision of the compensation judge on the extent of permanent partial disability and on the reasonableness of medical treatment and from the denial of her claim for housekeeping services.  We vacate in part and affirm as modified.

 

BACKGROUND

 

Rozanne Morris, the employee, was working as a staff nurse for Methodist Hospital, the employer, when she sustained an injury to her back on March 31, 1987.  The employee was sitting in a chair which collapsed and she fell, landing on her right buttock.  Liability for the injury was admitted by the employer. 

 

The employee=s course of medical treatment and its affect on her ability to work has been complicated.  In 1994 the parties litigated the employee=s entitlement to certain benefits.  The compensation judge=s decision was appealed to this court and an opinion was issued on September  19, 1994, which sets forth in detail the employee=s medical and employment situation up to that date.[1] 

 

In January 1995, the employee came under the care of Dr. Manuel Pinto at Twin Cities Spine Center.  By that time the employee had consulted with a number of physicians and had received different recommendations as to whether or not surgery was appropriate for her situation and if so, what type of surgery.  In his deposition, Dr. Pinto identified the treatment options he saw as either continuing with conservative care or proceeding with surgery.  Ultimately the employee proceeded with the surgical option and on May 2, 1995, Dr. Pinto performed an anterior and posterior fusion with instrumentation from T12 to S1.  Thereafter, additional surgery was done on August 5, 1996 to remove the instrumentation which had loosened.

 

On a visit to Dr. Pinto on March 11, 1998, the employee complained of intermittent loss of bladder control.  She was referred to Dr. Steven Siegel, a urologist.  In his chart note of June 8, 1998, Dr. Pinto referred to a note he received from Dr. Siegel in which Dr. Siegel provided his impression that there was no evidence of neuropathic process affecting bladder function.  He instead found evidence of pelvic floor spasticity and Type II stress urinary incontinence.  Physiotherapy aimed at the pelvic floor muscles was recommended. 

 

The employee underwent additional surgical procedures.  On February 26, 1999, the previous fusion was extended and she had an anterior release/discectomy and anterior fusion from T6 to T12.  She also had a posterior fusion from T2 to T12 with instrumentation.  After the employee was diagnosed with a lumbar stress fracture with anterior sagittal decompensation, she underwent a lumbar osteotomy at L4, bilateral foraminotomies at L5-S1 and L3-4 and additional fixation on December 3, 1999.  Additional foraminotomies at the L4-5 and L5-S1 levels were done on December 22, 1999.  In May 2000, she had another lumbar compression fracture which required surgical intervention.  In August 2000, she had surgery to remove a lumbar rod which had fractured.  Finally, in June 2001, she had surgery to repair a hip fracture which occurred when she fell and which was opined by Dr. Pinto as being related to her work injury. 

 

The parties entered into a stipulation for settlement which was the subject of an award on stipulation, served and filed on May 1, 2000.  The parties agreed that the employee was permanently and totally disabled as of January 1, 1995.  The stipulation also referenced an earlier agreement that had paid the employee some permanent partial disability and which closed out claims for permanent partial disability to the extent of 19% of the whole body. 

 

The employee filed a claim petition on April 6, 2000, alleging an underpayment of benefits.  The case was heard before a compensation judge on January 11, 2002.  In her statement of claim, the employee alleged entitlement to 57.3% permanent partial disability and requested payment of certain medical expenses, remodeling expense, and housekeeping services.  In her Findings and Order, served and filed March 19, 2002, the compensation judge determined that the employee had sustained a permanent partial disability of 48.25% and ordered payment of that rating less the 19% closed out by the previous stipulation.  The compensation judge found that the fusion surgeries of 1995 and 1999 were unreasonable and unnecessary but that the employee=s conduct in having the surgeries was not so unreasonable or dangerous so as to constitute an intervening, superseding cause.  Some of the medical expenses were ordered paid, but the compensation judge found insufficient evidence to allow reimbursement of prescription expense and made no determination on those expenses.  The compensation judge also held she did not have jurisdiction to award remodeling expense and determined that the requested housekeeping services were not reasonable and necessary medical expenses. 

 

The employee has appealed the compensation judge=s determination of the extent of permanent partial disability and the finding that the fusion surgeries of 1995 and 1999 were unreasonable and unnecessary.  The employee has also appealed the denial of housekeeping services.  We vacate in part and affirm as modified.

 

DECISION

 

1. Permanent Partial Disability

 

The employee claimed an entitlement to 57.3% permanent partial disability.  Specifically, the employee alleged disability of the lumbar spine of either 43% for stenosis under Minn. R. 5223.0070, subp. 1C(2), or 42.5% for multi-level fusion under Minn. R. 5223.0070, subp. 1D.  She also sought disability of the thoracic spine of 17.5% under Minn. R. 5223.0070, subp. 3C(5)(b), and disability for the bladder of 10% pursuant to Minn. R. 5223.0060, subp. 7D(1).  The ratings of 42.5%, 17.5%, and 10%, when combined pursuant to Minn. Stat. ' 176.105, subd. 4, result in a total claim of 57.3%. 

 

The compensation judge awarded 42.5% for disability to the lumbar spine, 10% for disability to the thoracic spine, and awarded no disability for any functional impairment of the bladder, finding that the evidence did not support a causal relationship between the employee=s symptoms and work injury.  The total permanent partial disability awarded by the compensation judge was 48.25%, with the compensation judge indicating that the employer had a credit for the 19% disability closed out by the previous agreement. 

 

The employee appeals from the compensation judge=s award of 10% rather than 17.5% disability for the thoracic spine and from the compensation judge=s denial of disability for the bladder. 

 

a. Thoracic Spine

 

On February 26, 1999, the employee underwent a surgical procedure which, according to the operative report, consisted of A1. Anterior release/discectomy T6-7, T7-8, T8-9, T9-10, T10-11, and T11-12.  2. Anterior fusion T6-T12. 3. Insertion of structural allografts at T10-11, T11-12 after application of extensive distractive forceps to correct the kyphosis.  4. Posterior fusion T2-T12. 5. Insertion of segmental instrumentation, Cross Large Set Titanium, T2-T       .@  The question for the compensation judge was what permanent partial disability was appropriate for the functional impairment to the thoracic spine following this procedure. 

 

As the compensation judge noted in her memorandum, there are no categories for fusion surgery of the thoracic spine.  The employer=s IME, Dr. Daniel Randa, used the wrong permanent partial disability schedule so the only precise rating of thoracic spine disability came from Dr. Pinto, employee=s surgeon.[2]  In his deposition, Dr. Pinto indicated that he rated the employee as having a 10% disability for the thoracic spine under Minn. R. 5223.0070, subp. 3B(2)(b), which would be a herniated intervertebral disc, symptomatic condition treated by surgery with poor surgical results.  He also referred to Minn. R. 5223.0070, subp. 3C(5)(b), for fractures to the thoracic spine, treated with fusion and poor reduction with persistent radicular pain and motor involvement for a rating of 17.5%.  The parties apparently regarded his opinion as calling for either a 10% or 17.5% rating.  The compensation judge did not award the 17.5% rating because she concluded that the evidence did not demonstrate radicular pain and motor involvement deficits specifically related to the thoracic spine.

 

The extent of permanent partial disability is a question of fact to be determined by the compensation judge and must be affirmed if it is supported by substantial evidence.  Jacobowitch  v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987).  Although the employee refers to indications of numbness and pain in the medical records, there is no evidence which relates these symptoms to the thoracic spine.  In his deposition testimony, Dr. Pinto did not provide any rationale for why this particular rating was most appropriate.  It is the employee=s obligation to establish each element of a claimed permanent partial disability rating.  Lohman v. Pillsbury Co., 40 W.C.D. 45 (W.C.C.A. 1987).  Here the compensation judge was essentially given a choice of ratings by the employee=s treating doctor.  Her determination that the employee sustained a 10% permanent partial disability due to the thoracic spine is based on the rating of Dr. Pinto and is supported by substantial evidence.  The award of permanent partial disability for the thoracic spine is affirmed.

 

b. Bladder

 

The employee appeals from the compensation judge=s denial of her claim for permanent partial disability due to her alleged bladder dysfunction.  The employee argues that the compensation judge erred as a matter of law on this issue because the compensation judge imposed a requirement in establishing permanent partial disability for the bladder not found in the rules.  Specifically, the employee asserts that the compensation judge denied her claim on this point because Dr. Pinto did not indicate which specific vertebral level was responsible for bladder dysfunction but the employee argues that the rules do not require such evidence.  We disagree with this construction of the compensation judge=s decision.

 

In her memorandum, the compensation judge specifically adopted the opinion of the IME, Dr. Randa, on the issue of permanent partial disability of the bladder.  Dr. Randa=s opinion, as expressed both in his report of January 18, 2001, and in his deposition, was that the employee did not have a neurogenic bladder as rated by Dr. Pinto.  He believed that there had not been significant nerve root compression to create a neurogenic bladder and he accepted the conclusion of Dr. Siegel as to the cause of any bladder difficulty being spasticity and not neuropathy.  The comments by the compensation judge in her memorandum regarding Dr. Pinto=s lack of specificity in his rating were to provide a basis for her acceptance of Dr. Randa=s opinion over that of Dr. Pinto. 

 

It is the role of the compensation judge as the fact finder to resolve conflicting expert opinion.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Here, given the explanation provided by Dr. Randa, the report of the opinion of Dr. Siegel and the lack of explanation by Dr. Pinto, substantial evidence supports the finding of the compensation judge.  The denial of permanent partial disability for the bladder is affirmed. 

 

2. Reasonableness of Medical Care

 

In finding eight, the compensation judge concluded that the fusion surgeries performed by Dr. Pinto in 1995 and 1999 were not reasonable treatment to cure and relieve the effects of the employee=s work injury.  The employee has appealed this finding.

 

The issue of reasonableness of the employee=s medical care arose in this case as an element of the employer=s defense to the permanent partial disability claim of the employee.  The employer argued that the medical care was unreasonable and unnecessary and that therefore the employee=s actions in proceeding with the treatment were so unreasonable and dangerous so as to constitute a superseding intervening cause of her permanent partial disability relieving the employer of liability.  The employer cited the decisions of this court in Smith v. Becklund Home Health Care Ctr., slip op. (W.C.C.A. Dec. 1, 1998), and Minke v. St. Paul Ramsey Medical Ctr., slip op. (W.C.C.A. Oct. 14, 1997). 

 

The compensation judge rejected the argument and held that the employee=s actions were not so unreasonable, dangerous or abnormal that they became a superseding intervening cause of her disability.  The employer did not appeal this finding.  At oral argument counsel for both parties conceded that the question of reasonableness of medical treatment was irrelevant to the issues on appeal.  Once the compensation judge concluded that the employee=s actions were not so unreasonable, dangerous or abnormal so as to create an intervening superseding cause of her disability, the finding of whether the medical treatment was reasonable became unnecessary.  Nevertheless, such a finding was made. 

 

The record before us does not indicate who made payment for the fusion surgeries and other treatment the employee has received since 1995.  No health care providers or other potential intervenors are parties to the present dispute.  We are aware that a finding on the reasonableness of medical care may be argued to be the law of the case which may affect future litigation involving parties not present here.  Accordingly, so as not to prejudice the rights of future litigants, we vacate finding eight of the Findings and Order.

 

3. Housekeeping Expenses

 

The employee claimed entitlement to housekeeping services.  At hearing, the employee testified that she was able to do some dusting, fix meals, and do her dishes.  She was not able to do the heavy cleaning, referred to as being mopping and vacuuming.  Dr. Pinto testified in his deposition that AI would have to know her home details, but I can tell you that the way she is and the problems that she=s had along the years, she would need help to carry daily chores, like cleaning and cooking and that type of stuff.  She would need help.@ As evidence in support of her claim, the employee introduced estimates from three cleaning services, each of which indicated that the services would be vacuuming, dusting and general cleaning of bathrooms and the kitchen. 

 

The workers= compensation statute contains no provisions obligating an employer and insurer to provide housekeeping services after an injury.  A claim for those services must be brought under Minn. Stat. ' 176.135, subd. 1, which requires an employer and insurer to provide medical care, including nursing services, which serve to cure and relieve the employee from the effects of the injury. 

 

In Meyer v. The Travel Co., 49 W.C.D. 583 (W.C.C.A. 1993), this court reversed a compensation judge=s award of housekeeping and yard work services.  Although the court noted that in cases of permanent total disability the scope of covered services is broader, the court held that the services were not those which might be provided by a medical provider and the employee had not proven that the services were necessary to cure and relieve from the effect of the injury.  In Sorcan v. USX. Corp., 59 W.C.D. 387 (W.C.C.A. 1999), some housekeeping services were ordered to be reimbursed where it was shown that services such as extra laundry and cleaning were performed more frequently because of the employee=s disability. 

 

In the present case, no such evidence was presented.  Substantial evidence supports the determination of the compensation judge that the requested housekeeping services did not constitute reasonable and necessary medical treatment.  The decision of the compensation judge on this point is affirmed.

 


[1] Morris v. Methodist Hosp., slip op. (W.C.C.A. Sept. 19, 1994).

[2] Dr. Randa utilized rules 5223.0300 - 5223.0650 in evaluating the employee=s permanent partial disability.  These rules are effective for injuries after July 1, 1993.