GREGORY A. REID, Employee/Appellant, v. ISANTI TIRE & AUTO CARE and MERIDIAN CITIZENS SECURITY, Employer-Insurer.

 

WORKERS' COMPENSATION COURT OF APPEALS

APRIL 9, 2002

 

HEADNOTES

 

PRACTICE & PROCEDURE - RES JUDICATA.  Where the only issue at a prior hearing was primary liability generally and the precise nature of the employee's injury was not specifically litigated or determined at that hearing, res judicata does not preclude subsequent consideration whether specific conditions subsequently diagnosed to the same body part are or are not causally related to the work injury.

 

PRACTICE & PROCEDURE - MATTERS AT ISSUE; PRACTICE & PROCEDURE - PROSPECTIVE FINDINGS  The existence or nonexistence of a causal link between the employee=s work injury and either an impingement syndrome or rotator cuff tear was wholly irrelevant to the employee=s claim for a diagnostic MRI and that issue was accordingly not properly before the compensation judge.  In addition, a finding determining causation for a condition or conditions for which a diagnosis is dependent on the test sought was, under the specific facts and circumstances of this case and its procedural posture, inherently premature. 

 

Affirmed in part and vacated in part.

 

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

Compensation Judge: Jennifer Patterson

 

                                                                      OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s determination that a prior,  November 22, 1999, Findings and Order is not res judicata with respect to causation for the employee=s current shoulder condition, and from that portion of the current Findings and Order determining that any  impingement syndrome or rotator cuff problem which may be revealed through a diagnostic MRI scan, for which authorization was awarded, is causally unrelated to the employee=s April 4, 1997, work injury.  We affirm in part and vacate in part.

 

BACKGROUND

 

The employee, Gregory A. Reid, sustained a work injury on April 4, 1997 while working for the employer, Isanti Tire and Auto Care, as a truck mechanic.  The employee was working under a truck which had been raised with a hydraulic jack and when he released the jack the truck lowered on the jack somewhat more rapidly than anticipated, striking the top of the employee's head.  The employee experienced some pain at the top of his head, a "crunch" in his neck and neck stiffness, but did not consider the injury sufficiently serious to seek immediate medical attention.  (T. 16, 23; Findings and Order, served and filed Nov. 22, 1999 [unappealed]: Findings 5 & 6.)

 

A few days later, however, on April 7, 1997, the employee awoke in the middle of the night with severe pain in his right shoulder, arm and hand. He was seen at the emergency department of the Cambridge Medical Center on that date where he reported that the pain seemed to have developed after "a sneeze or sniffle" in bed at about 3:00 a.m. that morning.  The doctor at the emergency room noted muscle spasm, mainly involving the right trapezius muscle as well as the paraspinal musculature.  The employee was given pain medications and advised to apply ice, to attend a physical therapy consultation, and to follow up with his family physician.  (T. 17, 33-34; Ex. E.)

 

On April 8, 1997, the employee was seen by a primary care physician at the Cambridge Medical Center, Dr. Bonnie Rohr.  He was treated with physical therapy and also obtained chiropractic treatment from Dr. Randall Westerberg, D.C., but his symptoms of right shoulder pain and numbness in the right hand continued.  Dr. Rohr referred the employee to Dr. Glenn Buttermann, at the Midwest Spine Institute, who saw him on July 11, 1997.  An MRI scan done on that date showed a narrowing and degeneration from C3 to C6.  At C4-5 there was a disc bulge at the left, and at C5-6 there was a bulge with right central disc herniation and foraminal stenosis.  Dr. Buttermann elicited from the employee a more complete history including the work incident of April 4, 1997.  In his report on July 11, 1997, he attributed the employee's symptoms to a work injury on that date.  His diagnosis was degenerative disc disease with disc herniation at C4-5 and C5-6 with radiculopathy.  He recommended the employee undergo further non-operative treatment to include home traction as well as isometric strengthening in physical therapy.  (Exs. E, G, H.)

 

The employee did not associate the April 4, 1997, work incident with the development of his symptoms until after he had consulted with Dr. Buttermann, and a first report of injury was not filed until about some time in July 1997.   Because of the length of the interval between the work injury and the filing of the first report of injury, and because of doubts about the mechanism of the injury, the insurer denied primary liability.

 

On March 13, 1998, because the employee=s symptoms of right shoulder pain, neck pain and right upper extremity numbness had become severe in nature, Dr. Buttermann recommended a right C6 nerve root sheath injection and continued chiropractic treatment.  A diagnostic and therapeutic cervical nerve root blockade of the right C6 nerve root was performed on May 11, 1998.  The employee=s initial therapeutic response was partial pain relief.  (Ex. G.)

 

On May 22, 1998 Dr. Buttermann again saw the employee, who continued to experience weakness, numbness and pain in a C6 distribution.  In light of the employee's lack of improvement despite a prolonged course of non-operative treatment, Dr. Buttermann recommended that the employee undergo a discectomy at C4-5 and C5-6 and decompression of the right C6 nerve root.  (Ex. G.)

 

On August 13, 1998, the employee filed a claim petition, alleging an injury to the neck, right shoulder and arm.  On August 24, 1998 the employer and insurer answered, denying liability.  (Ex. C.)  On November 4, 1999, a hearing was held on the employee's claim before a compensation judge of the Office of Administrative Hearings.  At hearing, the parties stipulated that the employee's medical expenses had been reasonable and necessary to cure and relieve "the effects of the employee's neck, right shoulder and arm problems," and that the employee required surgery.  The compensation judge stated that the issue presented was whether "the employee's neck and right shoulder and arm problems result from an incident occurring on April 4, 1997, while the employee was working within the course and scope of his employment at Isanti Tire and Auto Repair."  (Nov. 22, 1999, Findings and Order.)

 

Following the hearing, the judge found that the employee was a credible witness and had shown by a preponderance of the evidence that "the incident of April 4, 1997 caused injury to the employee's neck, right shoulder and arm, resulting in the employee's need for medical treatment and the employee's need for surgery in the future."  The employer and insurer were ordered to pay "all medical expenses incurred by the employee as a result of his neck, right shoulder and arm problem" and "to pay for the surgery recommended by Dr. Buttermann."  No appeal was taken from the judge's Findings and Order.  (Nov. 22, 1999, Findings and Order: Finding 14; Orders 1, 2.)

 

On March 13, 2000, the employee underwent an anterior cervical discectomy and fusion at C5-6 with right C5-6 decompression, performed by Dr. James Schwender, of the Twin Cities Spine Center.  On April 12, 2000, the employee was seen by Dr. Schwender in follow-up to the surgery and reported that his symptoms were greatly improved overall, but that he continued to have shoulder discomfort with shoulder motion.  By May 12, 2000, Dr. Schwender assessed the employee as having a satisfactory postoperative course but with right rotator cuff impingement.  (Ex. D.)

 

The employee was seen again at the Twin Cities Spine Center on June 7, 2000, and reported that the pain in his shoulder and forearm and the previous numbness in his forearm were alleviated, but that he had pain at the anterior lateral aspect of the acromion with some increase in pain on palpation of the posterior aspect radial nerve exit.  X-rays showed a good fusion at the C5-6 level with intact instrumentation.  Dr. Schwender recommended that the employee consider scheduling a right shoulder MRI scan to investigate labrial rotator cuff or other pathology.  On October 6, 2000, Dr. Schwender determined that the employee's physical examination demonstrated signs consistent with a rotator cuff tear.  He again recommended that the employee undergo the right shoulder MRI scan to determine further treatment options.   (Ex. D.)

 

The employee filed a medical request on December 22, 2000, seeking approval for a right shoulder MRI scan.  The employer and insurer responded on January 2, 2001, objecting to the proposed MRI scan and denying primary liability for the employee's current right shoulder condition. An administrative conference on the medical request was held before an arbitrator in the Department of Labor and Industry on January 23, 2001, who issued an administrative Decision and Order approving the MRI scan.  The employer and insurer filed a request for a formal hearing before a compensation judge on March 15, 2001.

 

The employee was seen for an examination on behalf of the employer and insurer by Dr. Thomas Litman, M.D., on April 24, 2001.  Dr. Litman found the employee's right shoulder motion to be symmetrical and normal in flexion and abduction, but restricted in internal and external rotation as compared to the left.  Impingement signs were absent bilaterally, and there was no crepitus or instability, but the right brachioradialis and radioperiosteal reflexes were diminished on the right as compared to the left.  Dr. Litman determined that the employee's residual right shoulder discomfort was quite consistent with his disc herniation at C5-6, and that the employee=s subjective limitation of shoulder rotation was also consistent with cervical root problems leading to right shoulder discomfort.  Dr. Litman found no evidence of rotator cuff injury on clinical evaluation and no evidence of impingement.  He attributed the employee's right shoulder complaints solely to the residual effects of a radicular problem at C5-6.  In addition, he expressed his opinion that the injury as described by the employee, being struck on the top of the head, was not likely to have led to any rotator cuff problems in the employee's shoulder.  (Ex. 1.)

 

In a letter report dated August 20, 2001, Dr. Schwender reiterated his recommendation for an MRI scan for diagnosis of the employee's right shoulder symptoms.  He expressed his opinion again that the employee's current right shoulder symptoms were related to the April 4, 1997, work injury.  (Ex. L.)

 

On August 24, 2001, the matter came on for hearing before a compensation judge of the Office of Administrative Hearings.  The employee took the position that the issue whether the employee had sustained a right shoulder injury was res judicata, based on unappealed findings in the earlier, November 22, 1999, Findings and Order.  The employer and insurer argued that the prior findings were not res judicata with respect to causation for an impingement syndrome or rotator cuff tear of the right shoulder and that such a condition was not causally related to the employee's 1997 work injury, relying on the opinion of Dr. Litman. 

 

In Findings and Order served and filed on September 12, 2001, the compensation judge determined that the prior findings in the November 22, 1999, Findings and Order were not res judicata with respect to the nature of the employee=s right shoulder condition or whether the employee=s current right shoulder condition was causally related to the work injury.  The judge held that the employee was entitled to the requested MRI scan at the expense of the employer and insurer, as that test was reasonably required for the diagnosis and treatment of the employee=s current right shoulder condition.  In addition, the compensation judge found, prospectively, that, if the employee=s right shoulder condition were subsequently determined to be the result of an impingement syndrome or rotator cuff problem, neither of those conditions would be related to the employee=s work injury and therefore not compensable. 

 

The employer and insurer did not appeal from the judge=s order authorizing the MRI scan.  The employee has appealed from the determinations that the prior Findings and Order are not res judicata with respect to causation for the employee=s current shoulder condition, and from that portion of the judge=s Findings and Order determining causation for a possible impingement syndrome or rotator cuff problem. 

 

STANDARD OF REVIEW

 

On appeal, this court must determine whether the compensation judge's  findings and order are "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1(3) (1992).  Substantial evidence supports the findings if, in the context of the record as a whole, they "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 the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, "[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).  Factfindings may not be disturbed, even though this court might disagree with them, "unless 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.           

 

Question of law.  The issues on appeal in this matter also involve the interpretation and application of case law to undisputed facts.  While this court may not disturb a compensation judge's findings of fact unless clearly erroneous and unsupported by substantial evidence in the record as a whole, Minn Stat. ' 176.421, subd. 1(3) (1992), a decision which rests upon the application of the law to undisputed facts involves a question of law which this court may consider de novo.  Krovchuk v. Koch Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

 

1. Res Judicata.

 

In the 1999 hearing, a compensation judge considered the issue whether "the employee's neck and right shoulder and arm problems result from an incident occurring on April 4, 1997, while the employee was working within the course and scope of his employment at Isanti Tire and Auto Repair."  In the unappealed Findings and Order served and filed following that hearing, the compensation judge found that "the incident of April 4, 1997, caused injury to the employee's neck, right shoulder and arm, resulting in the employee's need for medical treatment and the employee's need for surgery in the future."  The employer and insurer were ordered to pay "all medical expenses incurred by the employee as a result of his neck, right shoulder and arm problem" and "to pay for the surgery recommended by Dr. Buttermann."  No appeal was taken from the judge's Findings and Order.  (Nov. 22, 1999, Findings and Order: Finding 14; Orders 1, 2.)

 

At the second hearing, the employee argued that, to the extent the employee=s medical request seeking an MRI scan of the right shoulder raised the issue whether the employee had sustained an injury to his right shoulder from the work injury, the prior Findings and Order were res judicata with respect to such a right shoulder injury.  The employee argued that since an element of injury to the right shoulder had been established, and as the employee=s symptoms had persisted since the date of injury, the employee was entitled to a diagnostic MRI scan.  The employee pointed out that he was not claiming a rotator cuff injury or any specific right shoulder diagnosis, but was seeking the MRI purely to assist in diagnosing his right shoulder symptoms which had persisted since the cervical surgery.  (T. 8-10.)

 

The employer and insurer, on the other hand, noted that the employee=s treating physician had recommended the MRI scan to determine whether the employee=s symptoms were due to an impingement syndrome or rotator cuff problem.  They contended, in essence, that they had no liability for the proposed MRI scan unless the employee could show a causal link between the work injury and a possible shoulder impingement syndrome or rotator cuff injury.  In support of their position denying such a causal nexus they offered the opinion of their medical expert, Dr. Litman. Dr. Litman found no indications on examination of an impingement syndrome or rotator cuff problem.  He concluded that, as there was no history of direct injury to the employee=s right shoulder, the employee=s right shoulder symptoms were radicular in nature and solely related to the admitted cervical injury.  The employer and insurer further argued that, as the compensation judge in 1999 had not been presented with the issue of the specific nature and diagnosis of the employee=s injury, the prior Findings and Order were not res judicata with respect to whether the employee had sustained a direct injury to the shoulder or either an impingement syndrome or rotator cuff injury.  (T. 11-13.)

 

The compensation judge noted that the prior Findings and Order had not Aspecified the exact nature and diagnoses of the condition or conditions causing the employee=s right shoulder symptoms,@ and that Athe general holding of the 1999 Findings and Order that the employee sustained an injury to his right shoulder is not res judicata with respect to every specific diagnosis of the employee=s right shoulder from 1997 on.@  (Findings 3, 6.)  However, the compensation judge found that the employee had carried the burden of proving  the need for an MRI scan in order to diagnose his shoulder problems, and ordered the employer and insurer to pay for the scan.  The compensation judge=s decision was based on Klaven v. Northwest Medical Center, slip op. (W.C.C.A. Sept. 24, 1991), which held that diagnostic testing for non-work-related conditions is compensable where the ongoing symptoms in the same area of the body could otherwise be causally related to the work injury^[1].  (Findings 10, 11, Order 12.) 

 

The employee argues that the compensation judge=s determination on the res judicata issue was in error and that the compensation judge was barred by the effects of that doctrine from making the finding denying causation between the work injury and a rotator cuff tear or right shoulder impingement. 

 

Res judicata is a doctrine bringing finality to legal proceedings in which "a final judgment on the merits bars a second suit for the same claim by parties or their privies."  Kaiser v. Northern States Power Co., 353 N.W.2d 899, 902 (Minn. 1984).  It is well settled that the principles of res judicata are applicable in workers= compensation proceedings.  Alexander v. Kenneth R. LaLonde Enters., 288 N.W.2d 18, 31 W.C.D. 407 (Minn. 1980).  The doctrine, however, precludes only litigation of issues and claims that were in fact decided in an earlier decision.  Fischer v. Saga Corp., 498 N.W.2d 449, 450, 48 W.C.D. 368, 369 (Minn. 1993); Westendorf v. Campbell Soup, 243 N.W.2d 157, 28 W.C.D. 460 (Minn. 1976).

 

In this case, it is clear from the contents of the 1999 Findings and Order, and from its accompanying Memorandum, that the nature of the employee's injury was not directly at issue at the 1999 hearing.  The only issue in that hearing was primary liability generally and the employee=s credibility.  As found by the compensation judge, the nature of the employee's injury was not specifically litigated or determined at the 1999 hearing, although the judge=s findings specified those portions of the employee=s body which the parties had agreed were those affected by the work injury.  The compensation judge correctly held that the 1999 Findings and Order has no res judicata effect on the question of the nature of the employee=s right shoulder injury, and does not preclude judicial determination of the question of causation for specific right shoulder conditions diagnosed after 1999.  We, therefore, affirm.

 

2. Prospective Findings.

 

                        The compensation judge also found that A[t]he employee has not carried the burden of proving that right shoulder impingement or rotator cuff tear, if diagnosed after the MRI scan is performed, is causally related to his April 4, 1997 injury as a direct injury.@  (Finding 12.)  The employee also argues that his claim was predicated on the prior finding of a work-related right shoulder condition, which had persisted, diagnosis unknown, with a request for an MRI scan to assist in reaching a definitive diagnosis, and that, as such, the issue of the nature of the right shoulder injury or of causation for various conditions which might or might not be revealed by an MRI scan was not properly before the compensation judge.  The employee acknowledges that the employer and insurer sought to raise this argument as part of their defense against the employee=s request for an MRI scan, but asserts that the employee did not agree to an expansion of the issues to one of causation for an as-yet undetermined possible impingement syndrome or rotator cuff injury, and that the denial of a work-related cause for such conditions was premature.  We agree. 

 

The hearing below arose from a medical request filed by the employee seeking only a diagnostic MRI scan.  The employer and insurer strenuously argued that the employee would not be entitled to an MRI scan if the purpose of the scan was to diagnose a non-work condition.  The employer and insurer argued in order to demonstrate entitlement to the diagnostic MRI scan, the employee needed to prove that the conditions that the employee=s doctor wished to rule out, an impingement syndrome or rotator cuff tear, were related to the work injury.  However, we have previously held that an employee is entitled to such diagnostic testing to rule out non-work-related  conditions where the ongoing symptoms in the same area of the body could otherwise be causally related to the work injury.  Accordingly, the existence or nonexistence of a causal link between the work injury and either an impingement syndrome or rotator cuff tear was wholly irrelevant to the employee=s claim.  As such, that issue was not before the compensation judge.  

 

While the compensation judge understandably sought to address the specific issue propounded by the employer and insurer as their defense to the employee=s claim, careful analysis of the procedural posture of the case reveals that the issue of causation for a potential impingement syndrome or rotator cuff problem was not properly before the compensation judge.  In addition, we note that the purpose of the scan sought is to assist the employee=s physicians in diagnosing his right shoulder symptoms.  As such, a finding determining causation for a condition or conditions for which a diagnosis is still speculative was, under the specific facts and circumstances of this case and its procedural posture, premature.  Accordingly, we vacate Findings Nos. 9 and 12 and Order No. 2.