BRUCE OLSON, Employee, v. ADM GRAIN CO. and OLD REPUBLIC/CRAWFORD CO., Employer-Insurer/Appellants, and MN DEP=T OF ECONOMIC SEC., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 13, 2002

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY - MEDICALLY UNABLE TO CONTINUE; STATUTES CONSTRUED - MINN. STAT.  § 176.101, SUBD. 3j; MAXIMUM MEDICAL IMPROVEMENT - SERVICE OF MMI REPORT.  Where MMI had never been served on the employee subsequent to the 1998 temporary exacerbation of his 1989 work injury that had rendered him medically unable to continue working, where the employee had evidently conducted a reasonably diligent search for work during the subsequent benefits periods at issue, and where the employee remained during those periods subject to restrictions and residual disability causally related to the underlying 1989 work injury, the employee was entitled under Minn. Stat.  ' 176.101, subd. 3j, to the temporary total disability and rehabilitation benefits awarded by the compensation judge, notwithstanding the facts that the employee had fully recovered from the temporary exacerbation and that, but for his subsequent lay-off from the employer for reasons unrelated to his work injury, he might still be employed at full wage at his pre-injury job, modified to accommodate his restrictions.

 

Affirmed.

 

Determined by Pederson, J., Johnson, C. J. and Stofferahn, J.

Compensation Judge:  Jennifer Patterson

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge's award of recommencement of temporary total disability benefits.  We affirm.

 

BACKGROUND

 

On October 20, 1989, Bruce Olson sustained a work-related injury to his low back while dismantling power transmission equipment in the course of his employment as a millwright with ADM Grain Company [the employer].  Mr. Olson [the employee] was thirty-nine years old on that date and was earning a stipulated weekly wage of $741.12.  The employee commenced treatment for his injury on October 24, 1989, with low back specialist Dr. Thomas Hennessey, to whom he reported pain in the right side of his back that radiated into his right leg.  A lumbar CT scan conducted on that date was read to reveal a herniated disc at L4-5 on the right, with mild to moderate impingement on the right L5 nerve root, and Dr. Hennessey restricted the employee from working and prescribed medication and physical therapy.  On April 16 and 17, 1990, following completion of that therapy, the employee underwent a functional capacities evaluation [FCE], which resulted in restrictions against carrying over thirty-four pounds frequently (fifty-five pounds occasionally), against lifting from the floor more than ten pounds frequently (fifty pounds occasionally), against lifting at waist level more than fifty pounds frequently (sixty-five pounds occasionally), and against any continuous bending, stooping, squatting, climbing, reaching above shoulder level, kneeling, balancing, or pushing and pulling.  In her report to Dr. Hennessey on April 17, 1990, the FCE evaluator indicated that the employee Amay have a tendency to push beyond safe limits.@  On May 16, 1990, Dr. Hennessey released the employee to return to work full time within the restrictions specified on the FCE.  The employee evidently returned subsequently to his millwright job with the employer, apparently modified to accommodate these restrictions.  By stipulation of the parties at hearing, notice that the employee had reached maximum medical improvement [MMI] with regard to his October 1989 work injury was served on the employee on September 6, 1990.

 

On September 19, 1990, the employee was examined for the insurer by orthopedic surgeon Dr. Thomas Litman, who indicated in his report on September 24, 1990, that he had found on examination minimally limited range of motion of the employee=s back, very minimal tenderness over the low back, no spasm, intact sensation to touch and pinprick in both legs, normal muscle strength and no atrophy in the legs, and symmetrical ankle reflex, but Adefinitely diminished@ right knee reflex and positive results on straight leg raising tests, with posterior thigh pain on the left.  Based on those findings and on review of the employee=s medical records, including the employee=s October 24, 1989, CT scan, Dr. Litman concluded that the employee had sustained a Asignificant@ herniated disc at L4-5 as a result of his October 1989 work injury, which was ratable as a 14% impairment of his whole body pursuant to Minnesota Rules 5223.0070, subpart 1.B.(1)(b).  Recommending Acontinued vigorous, active exercise, active muscle stretching, and occasional mild, non prescription analgesic medications,@ Dr. Litman concluded that the employee could return to his regular employment, provided that he restrict his lifting to sixty pounds at any one time and to fifty pounds repeatedly and that he avoid very frequent bending, twisting, stooping, kneeling, or working over his head.  Dr. Litman did not expect the employee to return to his preinjury condition and considered the prognosis for further recovery to be Aquite guarded.@  In a Notice of Benefit Payment filed October 9, 1990, the insurer indicated that the employee had been paid lump-sum compensation on October 5, 1990, for a back-related permanent partial disability to 14% of his whole body, pursuant to Minnesota Rules 5223.0070, subpart 1.B.(1)(b).

 

The employee was essentially pain free for nearly eight years thereafter, until, on about June 22, 1998, he awoke one morning with pain in his right lower back and buttock, not related to any recent injury or activity.  He returned to see Dr. Hennessey on June 30, 1998, who, upon examination, restricted the employee to light duty and ordered a CT scan.  The scan, conducted on that same date, was read to confirm a herniated disc at L4-5 impinging on the right L5 nerve root, though the herniation was seen by the radiologist to be Aslightly smaller on the right when compared to the prior study of October 24, 1989.@  Dr. Hennessey prescribed physical therapy, and, on July 24, 1998, noting the employee to be essentially free of pain, he released the employee to return to full duties at his employment.^[1]

 

On August 21, 1998, the employee experienced another a flare-up of his low back symptoms, this time radiating into his right buttock and thigh, while bending, lifting, and twisting at work.  He contacted Dr. Hennessey again, who again took him off work and referred him for a lumbar epidurography and therapeutic injection, which were administered on August 28, 1998.  The initial therapeutic response to the injection was reported to be a fifty percent reduction in the employee=s pain.  A First Report of Injury was filed August 28, 1998, identifying June 20, 1998, as the date of the claimed injury, and the employee was apparently off work from August 24, 1998, through August 30, 1998.  In a Notice of Insurer=s Primary Liability Determination filed September 1, 1998, the insurer accepted liability for wage loss benefits for that period, and on September 4, 1998, rehabilitation services were commenced.  However, in another Notice of Insurer=s Primary Liability Determination filed less than a week later, on September 8, 1998, the insurer denied liability for the employee=s current condition.  The stated basis for the denial was that Athe employee has failed to provide any evidence of a causal relationship between present condition and his work.@  On September 25, 1998, Dr. Hennessey released the employee to return to light duty work, with a prescription for physical therapy and medication, and on September 28, 1998, the employee returned to working full time at his millwright job with the employer.  On October 29, 1998, the employee=s rehabilitation assistance file was closed.

 

On August 13, 1999, the employee filed a claim petition, seeking temporary total disability benefits from August 25, 1998, to September 28, 1998, together with a rehabilitation consultation and payment of various medical expenses.   The employer and insurer denied liability on August 27, 1999.  The employee continued to work for the employer as a millwright for about another year, until September 30, 2000, when the employer closed the plant in which the employee worked and laid off the employee.   Following his layoff, the employee requested rehabilitation assistance, but the employer and insurer denied his request, and the employee then applied for unemployment compensation, which he received from November 5, 2000, through April 21, 2001.

 

On March 21, 2001, the parties filed a stipulation for settlement of all of the employee=s claims to date based on his October 1989 work injury, and an award on that stipulation was filed the following day.  The employer and insurer=s position at the time of that settlement was that any injury at issue was either a new injury sustained on or about August 21, 1998 or an injury unrelated to the employee=s work activities.  On April 27, 2001, subsequent to that settlement, the employee filed another claim petition, alleging entitlement again to a rehabilitation consultation and also to temporary total disability benefits continuing from September 30, 2000, consequent to his October 1989 work injury.  Again the employer and insurer denied liability.  In June of 2001, the employee commenced employment that he had found on his own with Midwest Welding Metal Fab.  The work apparently exceeded the employee=s restrictions, however, and caused a flare-up in his back pain, and the employee quit this job just two days after beginning it.

 

On July 19, 2001, the employee was examined again for the employer and insurer by Dr. Litman, who concluded that the employee=s condition remained Aentirely unchanged.@  He indicated that it remained his opinion that the employee had sustained a disc herniation at the time of his 1989 work injury and that he Awould consider the history of increased pain, which occurred in June 1998 and in August 1998, to have been temporary aggravations, each lasting for a period of 60 days.@  He concluded expressly that Athe injury of October 20, 1989 remains the cause for [the employee=s] ongoing disability.@  Dr. Litman increased the employee=s lifting restriction by ten pounds over what it had been in 1990, due to the employee=s increased age, but he indicated expressly that, in his opinion, the employee Ahas not been disabled from employment since September 30, 2000 to the present date.  Had the [employer] not closed their plant, [the employee] would undoubtedly still be working for that company@ and A[the employee] is certainly employable in a wide range of activities within the restrictions I have described.@

 

On July 25, 2001, the employee commenced a job with Northland Maintenance, which he had also found on his own, doing grain elevator maintenance work that was within his restrictions.  On October 12, 2001, the employee amended his claim petition, to allege entitlement to temporary total disability benefits from September 30, 2000, to June 7, 2001, temporary partial disability benefits from June 8, 2001, to June 9, 2001, temporary total disability benefits again from June 10, 2001, to July 24, 2001, and temporary partial disability benefits continuing from July 25, 2001, to the present.  On October 23, 2001, the employer and insurer denied also the amended claim petition.

 

The matter came on for hearing on March 21, 2002.  Issues at hearing included the following:  (1) whether or not the employee=s increase in symptoms in 1998 constituted a new work injury or merely an exacerbation of his 1989 work injury; (2) whether or not the employee was medically unable to continue his job in 1998 within the meaning of Minn. Stat. ' 101, subd. 3(j), and, if so, whether the employer was required to serve a new MMI report to cut off entitlement to ongoing temporary total disability benefits; (3) whether the employee was entitled to temporary total disability benefits commencing September 30, 2000, or whether, instead, those claims were barred because the employee lost his job due to economic factors and not the ongoing effects of his work injury or injuries; (4) whether or not the employee continued to have restrictions arising out of his low back injury or injuries that affected his ability to find and hold a job; and (5) whether or not the employee continued to have an ongoing loss of earning capacity arising out of his work injury or injuries sufficient to entitle him to rehabilitation services.  The parties stipulated at hearing in part that the employee=s 1998 increase in symptoms was temporary and that the employee subsequently healed to his pre-1998 condition.

 

At uncontested Finding 10 of her Findings and Order filed April 29, 2002, the compensation judge concluded expressly that the fact A[t]hat the employee was released to his modified job does not support the conclusion that the employee had no restrictions in July 1998."  At uncontested Finding 11 the judge concluded also that the employee was unable to work as a millwright during the weeks from August 21 through September 25, 1998, and that the fact A[t]hat the employee was released to return to his modified job at the end of 1998 does not support the conclusion [that] he had no restrictions at all.@  In reliance on the opinion of Dr. Litman, the judge then concluded, at uncontested Finding 12, that Athe June and August 1998 flareups of symptoms were temporary aggravations of the employee=s permanent 1989 work injury and not new injuries.@  Finally, at Finding 13, the judge concluded as follows:

 

Between August 21 and September 25, 1998 when Dr. Hennessey took the employee off work completely, the employee was medically unable to continue his job within the meaning of Minn. Stat. ' 176.101, Subd. 3(j).  When an employee has been off work for a number of weeks following a 3(j) flareup of symptoms, the employer and insurer are required to serve a new maximum medical improvement report, Soto v. St. Paul Ramsey Medical Center (1989) 42 W.C.D. 135.  Because the employer did not re-serve maximum medical improvement following the August 1998 flareup of symptoms after which the employee was medically unable to continue at his job for about five weeks, there was no legal occurrence of maximum medical improvement from the 1998 exacerbation through the date of hearing.

 

Based on this conclusion and on evidence, reiterated in her memorandum, that the employee made a diligent search for work during the benefits periods in question, the compensation judge ordered in part that the employer pay the employee temporary total disability benefits for the periods September 30, 2000, to June 8, 2001, and June 11, 2001, to July 24, 2001.  The employer and insurer appeal.

 

STANDARD OF REVIEW

 

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 Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

 

The employer and insurer contend the compensation judge erred in awarding temporary total disability benefits subsequent to September 30, 2000.  Their argument is as follows:  The parties stipulated the employee reached maximum medical improvement from the effects of his October 20, 1989 personal injury on September 6, 1990.  (Finding 2.c.)  In June and August of 1998, the employee experienced  flare-ups of his low back symptoms and was paid workers= compensation benefits pursuant to Minn. Stat. ' 176.101, subd. 3j.  The parties stipulated, however, these flare-ups were temporary in nature and the Aemployee healed to his pre-1998 condition after the 1998 increase in symptoms.@  (Finding 2.e.)  Following these flare-ups, the employee returned to his modified job with the employer until the plant closed on September 30, 2000.  The appellants acknowledge the employee was not served with a notice that he had reached maximum medical improvement from the effects of his June and August 1998 flare-ups.  They argue, however, that a failure to serve notice of MMI does not provide a basis for a recommencement of total disability benefits because the employee totally recovered from the effects of the 1998 flare-ups and was able to return to work without any residual disability or restrictions resulting solely from those June and August 1998 flare-ups.  Citing Kautz v. Satterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1997), the appellants argue service of an MMI report is unnecessary and a meaningless exercise since the flare-ups were temporary and the employee healed to his pre-1998 condition after the flare-up.  Accordingly, the appellants contend the compensation judge=s award of temporary total disability benefits is legally erroneous.

 

We conclude the compensation judge=s award of temporary total disability benefits must be affirmed under Trojanowski v. Priment Data Sys./Mailhouse, Inc., 56 W.C.D. 271 (W.C.C.A. 1997), Rev=d with mem. (Minn. March 18, 1997).  In Trojanowski, the employee sustained an injury in June 1988 from which he reached maximum medical improvement in 1991.  The employee continued to work for the employer but then suffered a flare-up of his condition and was off work for ten days in September 1994.  This flare-up resolved and the employee returned to work with his employer with no additional disability or restrictions beyond those attributable to the original 1988 injury.  In 1995, the employee was laid off by the employer and sought further temporary total disability benefits which were awarded by the compensation judge.  On appeal, the Workers= Compensation Court of Appeals reversed the award of benefits stating the employee had no further entitlement to such benefits based upon the initial 1988 injury because the employee had reached maximum medical improvement from the effects of that injury.  This court further concluded, citing the Kautz case, the employee had no further entitlement to benefits based upon the subd. 3j flare-up because that flare-up fully resolved without any additional disability, restrictions or permanent partial disability resulting solely from that flare-up.  Accordingly, the court held the MMI provisions of Minn. Stat. ' 176.101, sub. 3e(a), were not applicable and service of an MMI report was not required.  The supreme court, however, reversed the Workers= Compensation Court of Appeals, holding the Kautz case was not applicable and reinstated the award of temporary total disability benefits. 

 

We find the material facts in this case indistinguishable from the facts in Trojanowski.  In both cases, the employee reached and was served with notice of maximum medical improvement from the effects of the original injury.  In both cases, the employee later suffered a flare-up of the underlying condition for which the employee was paid benefits under Minn. Stat. ' 176.101, subd. 3(j).  Both employees fully recovered from the effects of their flare-ups without any additional disability restrictions or permanency beyond those attributable to the original injury.  In neither case, was the employee served with a notice that he had reached maximum medical improvement from the effects of the subd. 3(j) flare-up.  Based upon Trojanowski, the compensation judge=s award of benefits must be affirmed because of the employer and insurer=s failure to serve a second MMI report stating the employee had recovered from the effects of his flare-up. 

 

The appellants next argue the cause of the employee=s wage loss was the plant closing rather than his personal injury.  We find no merit in this argument.  The issue is not what precipitated the period of unemployment but whether the personal injury is a substantial contributing cause of the unemployment.  The employee sustained a 14 percent permanent partial disability and his ability to work was restricted as a result of his 1989 injury.  Substantial evidence supports the compensation judge=s conclusion that the 1989 injury was a substantial contributing cause of the employee=s unemployment subsequent to September 30, 2000.  We acknowledge the employee has no further entitlement to temporary total disability benefits due to the initial 1989 injury because he has reached maximum medical improvement from the effects of that injury.  The employee has not, however, been served notice of maximum medical improvement from the effects the 1998 flare-ups.  Accordingly, under Trojanowski, the employer=s liability for total disability benefits continues.  The decision of the compensation judge is, therefore, affirmed.