NORMAN F. TUREK, Employee/Appellant, v. NORTHFIELD FREEZINGS f/n/a NORTHFIELD EQUIP. and ACCEPTANCE INDEM. INS. CO./PREFERRED WORKS, Employer-Insurer/Cross-Appellants, and NORTHFIELD FREEZINGS f/n/a NORTHFIELD EQUIP. and NATIONAL UNION FIRE INS. CO./GAB ROBINS, INC., Employer-Insurer/Cross-Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 30, 2002

 

HEADNOTES

 

PRACTICE & PROCEDURE - DISCONTINUANCE; NOTICE OF DISCONTINUANCE; STATUTES CONSTRUED - MINN. STAT. ' 176.238, SUBDS. 1 AND 2.  A compensation judge=s decision awarding wage loss benefits through the date of hearing and continuing triggers the need to comply with statutory provisions concerning discontinuance.  An employer and insurer that fail to file an NOID as contemplated by Minn. Stat. ' 176.238, subds. 1 and 2, are, under those provisions, liable for continuing temporary total disability benefits for 50 days from the date of the last benefit payment, or the date the NOID should have been filed.

 

PRACTICE & PROCEDURE - MATTERS AT ISSUE.  Under the circumstances of this case, the compensation judge erred in deferring ruling on the employee=s permanent partial disability claim simply in order to allow the employee to obtain additional evidence.

 

CAUSATION - PERMANENT AGGRAVATION.  Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee=s 1998 low back injury was permanent.

 

EVIDENCE - RES JUDICATA.  Where the compensation judge erred in giving res judicata effect to a prior compensation judge=s decision, with regard to benefit entitlement after the first hearing, remand was necessary to reevaluate the employee=s temporary total disability claim.

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Substantial evidence supported the compensation judge=s award of pain clinic treatment, but an order for payment of one office visit was reversed as being the result of an obvious clerical error, and the award for treatment by a psychologist was reversed and the matter remanded for reconsideration, where the compensation judge=s rationale did not adequately support the award.

 

CAUSATION - PSYCHOLOGICAL INJURY.  Substantial evidence, including expert opinion, supported the compensation judge=s denial of the employee=s consequential psychological injury claim, especially where the record suggested that the employee=s depression was related to pursuing his workers= compensation claim, rather than to the work injury itself.

 

Affirmed in part, reversed in part, and remanded.

 

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

Compensation Judge:  Ronald E. Erickson.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s denial of temporary total disability benefits after September 5, 2000, and from the judge=s denial of his consequential psychological injury claim.  The employer and National Union Fire Insurance Company appeal from the compensation judge=s award of temporary total disability benefits through September 5, 2000, from the judge=s failure to determine the employee=s permanent partial disability claim, from the judge=s decision that the employee=s 1998 injury was responsible for 50% of the employee=s disability and need for treatment for the period at issue, and from the judge=s award of certain treatment expenses.^[1]  We affirm in part, reverse in part, and remand for further proceedings consistent with this decision.

 

BACKGROUND

 

The employee sustained three work-related low back injuries while employed as a sheetmetal worker for Northfield Freezings, formerly known as Northfield Equipment [the employer].^[2]  On the date of the first injury, July 31, 1992, the employer was insured by State Fund Mutual Insurance Company [State Fund Mutual], which apparently admitted liability for the injury and paid certain treatment expenses, including some physical therapy expenses; the employee lost no time from work following this injury.

 

The second injury at issue occurred on May 5, 1995, while the employer was insured by Acceptance Indemnity Insurance Company [Acceptance].  Diagnostic scans disclosed lumbar degenerative changes, and the employee underwent physical therapy again, working light duty for several months before resuming his usual job, subject to a 40-pound lifting restriction.  The employer and Acceptance admitted liability for this injury and ultimately paid various benefits, including benefits for a 3.5% whole body impairment.

 

The employee sustained his third work-related low back injury on June 29, 1998, while National Union Fire Insurance Company was on the risk for workers= compensation liability.  The employee was then off work entirely until about July 14, 1998, at which point he returned to the employer and worked for three days, light duty, before going off work again due to the severity of his symptoms.

 

The employee has not worked in any capacity since July of 1998 and qualified for social security disability benefits in December of 1998.  Diagnoses for his low back condition include lumbar sprain/strain, chronic lumbar spondylosis, aggravated by work injuries, degenerative joint disease at L4-5 and L5-S1, and L5 foraminal stenosis with a bulging L5-S1 disc.  The employee was eventually seen or evaluated by numerous physicians.  Treatment ultimately included not only physical therapy and medication, including narcotics, but epidural steroid injections, facet injections,  a radiofrequency neurotomy, and use of a TENS unit.  He is not considered a surgical candidate.

 

The matter first came on for hearing on January 15, 1999, before Compensation Judge Paul Rieke.  Issues included the employee=s entitlement to temporary total disability benefits and medical expenses following his third low back injury, and equitable apportionment.  In a decision issued on January 20, 1999, Judge Rieke concluded that the employee was entitled to temporary total disability benefits, as claimed, to the date of hearing Aand continuing so long as the employee=s disability warrants subject to the terms and limitations of the Minnesota Workers= Compensation Act.@  In findings relevant to the respective liability of the three insurers, the compensation judge concluded that the employee=s 1992 low back injury was merely temporary and that State Fund Mutual was therefore not responsible for the benefits at issue, but that National Union and Acceptance were each responsible for 50% of the employee=s disability and need for treatment after the employee=s June 29, 1998, injury.  The judge further determined that the employee had not yet reached maximum medical improvement [MMI] from the combined effects of his 1995 and 1998 injuries and that, at the time of the hearing, it was premature to determine whether the employee=s 1998 injury was permanent in nature.  National Union was designated paying agent for the benefit award.

 

The employer and National Union appealed from the judge=s decision to the Workers= Compensation Court of Appeals.  During the pendency of the appeal, in late April of 1999, the employee underwent a Functional Capacities Evaluation [FCE] at the Spine Rehabilitation Clinic.  The evaluating therapist reported that he did Anot see [the employee] as an employee in any work setting@ given his functional limitations.  Based in part on the results of the FCE, QRC Larry Mansfield concluded that the employee would not benefit from rehabilitation services because he was unlikely to Afind suitable, gainful employment that he could sustain.@  The QRC informed the employer that, if his conclusion to this effect was Anot acceptable,@ he would recommend a comprehensive vocational assessment.  No one requested any further rehabilitation services.

 

On August 23, 1999, the Workers= Compensation Court of Appeals issued its opinion on appeal from Judge Rieke=s decision.  Turek v. Northfield Equipment/Freezings, slip op. (W.C.C.A. Aug. 23, 1999).  We affirmed the judge=s equitable apportionment of liability between Acceptance and National Union, but we reversed the judge=s award of temporary total disability benefits and remanded the matter for reconsideration and further findings, noting in part that Judge Rieke had made no definite finding that the employee was totally disabled from a medical standpoint but had also made no finding as to job search at all, despite the fact that the employee=s lack of job search was one of the insurers= main defenses.  We further noted that different consideration might apply to different periods of the employee=s claim.  No appeal was taken from our decision.

 

In late 1999, the employee was diagnosed with hairy cell leukemia.  Treatment included chemotherapy, and a related infection apparently resulted in a 10-day hospitalization.  Following treatment, the disease went into remission.

 

Judge Rieke issued his findings and order on remand on February 14, 2000.  In that decision, Judge Rieke concluded that the employee had been temporarily totally disabled from July 17, 1998, to September 3, 1998, given his medical condition and lack of rehabilitation assistance, but that the employee was not eligible for temporary total disability benefits from September 3, 1998, through November 5, 1998, in part because he failed to try to return to light-duty work with the employer.  The judge awarded the employee temporary total disability benefits from November 5, 1998, to December 4, 1998, finding that the employee had tried to resume work with the employer but that the employer had refused to take him back without more specific restrictions, and the judge further awarded temporary total disability benefits through the January 15, 1999, hearing date, finding that the employee=s condition Acontinue[d] to significantly limit his ability to work.@  In his order, Judge Rieke reinstated his prior decision as to temporary total disability, with the exception of the approximately two-month period from September 3, 1998, to November 5, 1998, as noted above.

 

National Union filed a Notice of Benefit Payment in March of 2000, documenting payment of wage loss benefits as of February 28, 2000, as ordered for the periods through the January 15, 1999, date of hearing before Judge Rieke.  No wage loss benefits were paid beyond that date, and no Notice of Intention to Discontinue Benefits [NOID] was served or filed.  In May of 2000, the employee filed a claim petition, seeking various benefits, including temporary total or permanent total disability benefits continuing from January 16, 1999.

 

The employee participated in inpatient chronic pain treatment at the Mayo Clinic in early 2001.  After completion of the program, he was referred to the ISJ Clinic - Northridge, another Mayo facility, for follow-up care, where he was seen by Lisa Clemensen, a licensed psychologist.  By this time, the employee had been diagnosed with anxiety and depression.  Treatment records document numerous stressors in the employee=s life, including his leukemia, the illness and death of family members, and anxiety over the upcoming workers= compensation proceedings.

 

Hearing on the employee=s claim petition was held on July 27, 2001, this time before Judge Ronald Erickson.  As of this date, the employee was claiming temporary total or permanent total disability benefits from and after the date of hearing before Judge Rieke, additional permanent partial disability benefits, and various treatment expenses, including expenses relating to his chronic pain program and the follow-up at ISJ Clinic - Northridge.  Related issues included the res judicata effect, if any, of Judge Rieke=s decision; the legal effect, if any, of National Union=s failure to either pay continuing temporary total disability benefits or to file an NOID; whether the employee had retired or withdrawn from the labor market; whether the employee had developed a consequential psychological injury as a result of his work-related low back condition; whether the 1998 injury was temporary or permanent; and the propriety of equitable apportionment of liability for any benefits awarded.  Evidence included the testimony of the employee, QRC Mansfield, and vocational expert Richard VanWagner, and records and reports from physicians who had either treated or evaluated the employee in connection with his claim, including Drs. Jack Bert, Thomas Litman, Mark Friedland, Paul Wicklund, Edward Hames, J. Sherman, Martin Herrmann, David Halvorson, and John Rauenhorst.  Much of the documentary evidence had also been submitted to Judge Rieke.  During the course of the hearing, the employee withdrew his claim for permanent total disability benefits, at the suggestion of the compensation judge.  State Fund Mutual, the insurer on the risk for the 1992 temporary injury, was not a party to the proceedings.

 

In his decision, issued on October 25, 2001, Judge Erickson concluded that the employee=s 1998 injury was permanent and that National Union was liable for 50% of the employee=s disability and need for treatment during the period at issue.  The judge denied the employee=s psychological injury claim but awarded various medical expenses, including expenses for the employee=s chronic pain program and treatment at ISJ Clinic - Northridge.  With respect to the temporary total disability claim, the judge awarded benefits following the date of the hearing before Judge Rieke through September 5, 2000, but denied benefits thereafter based on his conclusion that the employee had retired and withdrawn from the labor market as of that date.  Finally, the judge deferred ruling on the employee=s claim for additional permanent partial disability benefits, finding the issue Apremature.@  All parties appeal.^[3]

 

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.  Nature of 1998 Injury

 

National Union alleges that the record as a whole compels the conclusion that the employee=s 1998 injury was at most temporary and that Judge Erickson erred in finding otherwise and in continuing the 50/50 apportionment originally ordered by Judge Rieke.^[4]  In support of this argument, National Union contends in part that, according to the employee=s own testimony, the employee=s pain pattern was essentially the same after all three work injuries, and that there has been no objective change in the employee=s underlying condition.  There may well be evidence that supports National Union=s position.  However, the record as a whole easily supports the compensation judge=s decision that the 1998 injury was permanent.

 

Dr. Paul Wicklund examined the employee on September 5, 2000, on behalf of National Union.  In his report of that same date, Dr. Wicklund indicated that the employee=s 1998 work injury had permanently aggravated the employee=s symptoms.  In addition, Dr. Litman indicated in his December 1998 report that the 1998 injury was a substantial contributing cause of the employee=s back problem, and Dr. Bert wrote in his December 1998 report that the 1998 injury Aresulted in a permanent aggravation of [the employee=s] longstanding chronic preexisting condition.@  Granted, the reports of Drs. Bert and Litman were submitted to Judge Rieke, who concluded that it was premature at that time to make any finding as to whether the 1998 injury was permanent.  However, the three doctors= opinions together nevertheless support Judge Erickson=s conclusion.

 

National Union makes no argument that some other apportionment -- other than 50/50 -- is warranted, only that the 1998 injury was not permanent.  Therefore, because substantial evidence supports Judge Erickson=s conclusion as to the permanence of the injury, we affirm his decision imposing liability on National Union for 50% of the employee=s disability and need for treatment.

 

2.  Consequential Psychological Injury

 

The employee claimed that he developed a consequential psychological injury as a result of his work-related low back condition.  There is evidence in the record to support his contention.  Specifically, the employee did offer minimal testimony at hearing indicating that his low back pain caused feelings of helplessness, inadequacy, and anxiety.  Certain treatment records also support his psychological injury claim, including records from his chronic pain program and the follow-up provided by psychologist Lisa Clemensen at ISJ Clinic - Northridge.  The compensation judge, however, found as follows on this issue:

 

The employee has failed to establish by a preponderance of the evidence that he sustained a psychiatric injury secondary to the work injury of 1995 or 1998.  His main source of anxiety is fear, worry and concern over the workers= compensation legal system and the trials occurring as a part of moving through the workers= compensation system.  Dealing with the legal ramifications of one=s claim and any resulting anxiety therefrom is not a compensable injury arising out of and in the course of one=s employment activity.

 

In other findings, the judge listed numerous other stressors noted in the employee=s treatment records, including the employee=s leukemia, the recent deaths of his mother and mother-in-law, and the potential serious illness of his son-in-law.  Many treatment records suggest that dealing with the workers= compensation system was perhaps the employee=s most significant source of stress; the employee himself essentially admitted as much at hearing.  As the compensation judge noted, disability resulting from pursuing a workers= compensation claim, as opposed to the work injury itself, is generally not compensable.  See, e.g., Hendrickson v. Geo. Madsen Constr. Co., 281 N.W.2d 672, 31 W.C.D. 608 (Minn. 1979).  Finally, Dr. Rauenhorst expressly reported that the employee=s psychological condition was not causally related to his low back injuries.  Contrary to the employee=s arguments, we believe that the compensation judge was entitled to rely on that opinion, especially in view of the emphasis in treatment records on psychologically stressful events other than the employee=s low back injury per se.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

 

Because substantial evidence supports the compensation judge=s decision, we affirm his denial of the employee=s psychological injury claim.

 

3.  Permanent Partial Disability

 

The employee claimed benefits for additional permanent partial disability beyond the 3.5% whole body rating for which Acceptance had paid benefits following the employee=s 1995 injury.  The judge=s finding on this issue reads as follows:

 

The employee relies for support of his claims for additional permanent partial disability on the report of Dr. Thomas Litman provided less than six months following the work injury of June 29, 1998.  The employee has had extensive treatment since that report was provided.  For this reason, the Compensation Judge concludes that the issue of permanent partial disability has been prematurely addressed in this claim as the employee should return to Dr. Sherman or one of his treating physicians for a follow-up rating now that his treatment has been essentially completed.

 

In his memorandum, the judge further explained,

 

The Compensation Judge is not comfortable with finding a permanent partial disability rating based on these circumstances.  It seems to the Compensation Judge that the more prudent course would be to have the employee return to Dr. Sherman now that he has completed most of his treatment program and obtain a disability evaluation from Dr. Sherman.  Dr. Sherman has seen the employee on two prior occasions and already has considerable background in this case.  He is a skilled orthopedic physician and his talent should be utilized in this case.

 

National Union argues that the compensation judge erred in deferring decision on this issue.  We agree.

 

Minn. Stat. ' 176.371 reads in relevant part as follows:

 

The compensation judge to whom a petition has been assigned for hearing, shall hear all competent, relevant evidence produced at the hearing.  All questions of fact and law submitted to a compensation judge at the hearing shall be disposed of and the judge=s decision shall be filed with the commissioner, except where expedited procedures require a shorter time, within 60 days after the submission, unless sickness or casualty prevents a timely filing, or the chief administrative law judge extends the time for good cause.  The compensation judge=s decision shall include a determination of all contested issues of fact and law and an award of disallowance of compensation or other order as the pleadings, evidence, this chapter and rule require.

 

(Emphasis added.)  The employee=s permanent partial disability claim was submitted to the compensation judge for decision, and it is generally inappropriate to defer decision on a disputed issue solely for the purpose of allowing a party to obtain more evidence in support of his claim.  The employee could have withdrawn his permanency claim prior to or even during the hearing had he wished to gather additional proof; he did not do so.  The compensation judge=s decision on this issue is therefore reversed and the matter remanded for decision based on the existing record.  Depending on his decision, the judge should also resolve National Union=s claims regarding causation and/or apportionment of permanent partial disability in terms of the respective liabilities of Acceptance and National Union for any permanent partial disability benefits award.

 

4.  Temporary Total Disability

 

The compensation judge awarded the employee temporary total disability benefits after January 15, 1999, the date of the hearing before Judge Rieke, through September 5, 2000, the date of Dr. Wicklund=s report indicating that the employee could work subject to certain restrictions, but the judge denied the employee=s claim for temporary total disability benefits thereafter, finding that the employee had retired and/or withdrawn from the labor market as of that date.

 

On appeal, the employee argues that he is entitled to temporary total disability benefits through the date of the hearing as a matter of law, pursuant to Minn. Stat. ' 176.238; that Judge Erickson erred by using Dr. Wicklund=s opinion to terminate temporary total disability benefits as of September 5, 2000, because Dr. Wicklund=s opinion is contrary to Judge Rieke=s previous findings and order regarding the employee=s ability to work; and that vocational expert Richard VanWagner=s opinion as to the employee=s employability cannot be used to support a denial of benefits because he relied on physicians= opinions rejected by Judge Rieke in the previous proceeding.  On cross appeal, National Union argues that Judge Erickson erred in awarding temporary total disability benefits through September 5, 2000, because the record establishes that the employee retired earlier; that Judge Erickson erred in giving any res judicata effect to Judge Rieke=s decision with regard to benefits claimed after the hearing before Judge Rieke; and that Judge Erickson erred in failing to find the employee=s leukemia, and related treatment, a superseding, intervening cause of the employee=s disability for at least some period.  We agree that Judge Erickson erred in some of his findings and analysis regarding the employee=s entitlement to temporary total disability benefits following the January 15, 1999, hearing before Judge Rieke.

 

The most difficult issue on appeal concerns the legal effect of National Union=s failure to file an NOID.  As previously indicated, Judge Rieke ordered payment of temporary total disability benefits through the date of the hearing before him Aand continuing so long as the employee=s disability warrants subject to the terms and limitations of the Minnesota Workers= Compensation Act.@  That award was Aagain determined and ordered,@ with the exception of a two-month period of benefits, in Judge Rieke=s February 2000 decision on remand.  In March of 2000, National Union filed a Notice of Benefit Payment [NOBP], paying the employee benefits for periods through the date of the hearing before Judge Rieke but not beyond.  National Union never filed an NOID, and the employee contends that National Union=s failure to file an NOID renders the insurers liable, as a matter of law, for payment of temporary total disability benefits through July 27, 2001, the date of the hearing before Judge Erickson.  While we are not entirely persuaded by the employee=s argument, we nevertheless conclude that some temporary total disability benefits are due under the provisions of Minn. Stat. '' 176.238 and 176.239, and related rules.

 

Minn. Stat. ' 176.238, subds. 1 and 2, provide as follows:

 

Subdivision 1.  Necessity for notice and showing; contents.  Except as provided in section 176.221, subdivision 1, once the employer has commenced payment of benefits, the employer may not discontinue payment of compensation until it provides the employee with notice in writing of intention to do so.  A copy of the notice shall be filed with the division by the employer.  The notice to the employee and the copy to the division shall state the date of intended discontinuance and set forth a statement of facts clearly indicating the reason for the action.  Copies of whatever medical reports or other written reports in the employer=s possession which are relied on for the discontinuance shall be attached to the notice.

 

Subd. 2.  Continuance of employer=s liability; suspension.  (a) Discontinuance because of return to work.  If the reason for discontinuance is that the employee has returned to work, temporary total compensation may be discontinued effective the day the employee returned to work.  Written notice shall be served on the employee and filed with the division within 14 days of the date the insurer or self-insured employer has notice that the employee has returned to work.

 

(b)  Discontinuance for reasons other than return to work.  If the reason for the discontinuance is for other than that the employee has returned to work, the liability of the employer to make payments of compensation continues until the copy of the notice and reports have been filed with the division.  When the division has received a copy of the notice of discontinuance, the statement of facts and available medical reports, the duty of the employer to pay compensation is suspended, except as provided in the following subdivisions and in section 176.239.

 

(Emphasis added.)  National Union argues that it acted appropriately by filing an NOBP and that no NOID was required; however, this court has said on several occasions that a compensation judge=s order for benefits through the date of hearing Aand continuing@ triggers the need to comply with the statutory provisions on discontinuance.  See Dills v. Seco, Inc., slip op. (W.C.C.A. Nov. 14, 1996); Kimber v. Michael Osterman, Sr., slip op. (W.C.C.A. Aug. 13, 1996); Donnahue v. Glory Shine Cleaning, Inc., slip op. (W.C.C.A. June 13, 1996).  See also Minn. R. 5220.2720, subp. 1C (allowing assessment of a penalty for improper discontinuance where Athe discontinuance occurred without notice despite a final decision of a compensation judge . . . requiring payment of ongoing benefits@).  The question is, then, what is the obligation of the insurers for temporary total disability benefits in this case given that no NOID was ever filed?

 

We have found no case discussing in any detail an insurer=s potential continued liability for wage loss benefits, based on violation of the requirements of Minn. Stat. ' 176.238, under the circumstances presented here.^[5]  This is not a case in which discontinuance occurred only a short period prior to the filing of an NOID; no NOID was ever filed, and nearly seventeen months of benefits are at stake, at a minimum.  Cf. Ansari v. Harold Chevrolet, Inc., 336 N.W.2d 276, 36 W.C.D. 49 (Minn. 1983).  Nor is this a case in which the employer and insurer failed to comply with the discontinuance provisions on mere technical grounds, warranting relief from strict application of the statute.  Cf., e.g., Woelfel v. Plastics, Inc., 371 N.W.2d 215, 217, 38 W.C.D. 43, 45 (Minn. 1985); Barlau v. Prudential Ins. Co., 60 W.C.D. 426 (W.C.C.A. 2000); Aune v. ConAgra, 54 W.C.D. 294 (W.C.C.A. 1996); Hernandez v. Bergerson Caswell, Inc., slip op. (W.C.C.A. Sept. 6, 2001).  Finally, this is not a case in which there was some other communication with the employee that fulfilled the purpose of the NOID -- to inform him of the discontinuance and its reason, and to give him the opportunity to contest the employer=s action on an expedited basis.  See Nutter v. United Parcel Serv., 58 W.C.D. 183 (W.C.C.A. 1997); Mellema v. Tool Prods., 49 W.C.D. 487 (W.C.C.A. 1993).  We think, however, that the statute and rules provide a reasonable solution that balances the employee=s rights under Minn. Stat. ' 176.238 and an employer and insurer=s legitimate interest in avoiding liability for benefits not otherwise due.

 

Pursuant to Minn. Stat. ' 176.239, subd. 2, Aif [an] employer discontinues compensation without giving notice as required by section 176.238, the employee=s time period for requesting an administrative conference,@ and thereby invoking the expedited hearing procedures, Ais extended up to and including the 40th calendar day after which the notice should have been served and filed.@  See also Minn. R. 5220.2640, subd. 2 (if an insurer reduces, suspends or discontinues benefits without properly serving and filing an NOID, the employee may request an administrative conference Awithin 40 days after the employee received the last payment@).  Once a timely request is made, a conference must be scheduled within 10 calendar days.  Minn. Stat. ' 176.239, subd. 4.  An employee should not be allowed to ignore the availability of expedited proceedings in order to obtain an award of benefits, on technical grounds, through the date of hearing on a claim petition months later.  Statutory language notwithstanding, we are not convinced that the legislature contemplated indefinite continuing liability for benefits, regardless of underlying entitlement, for violation of Minn. Stat. ' 176.238.  At the same time, employers and insurers who fail to comply with the requirements of Minn. Stat. ' 176.238 should not be in a better position than those who properly serve NOIDs and pay benefits, as the statute generally envisions, through the conference date.  See Minn. Stat. ' 176.239, subd. 3 (when a conference is requested, compensation is generally payable through the date of the conference, subject to certain exceptions); Minn. R. 5220.2640, subp. 3.  Without consequences for violation, employers and insurers might well ignore the discontinuance statute altogether.^[6]  Therefore, we hold that an employer and insurer who neglect or fail to file an NOID, as required by Minn. Stat. ' 176.238, subds. 1 and 2, are liable for payment of benefits for a 50-day period beginning when the NOID should have been filed, or the date of the last benefit payment.^[7]  In the present case, under this ruling, the insurers are liable for temporary total disability benefits for the 50-day period commencing on the date of the employee=s payment pursuant to the NOBP.

 

The remaining issues concerning temporary total disability are more easily disposed of.  In awarding benefits through September 5, 2000, the compensation judge essentially gave res judicata effect to Judge Rieke=s previous findings and order, explaining in his memorandum as follows:

 

[T]he findings regarding the employee=s physical condition as determined by Judge Rieke are valid and remain the law of the case until further facts are developed or presented that change that view of the case.  Judge Rieke specifically found in his Findings and Order on Remand served and filed on February 14, 2000 that the employee=s physical condition continues to significantly limit his ability to work.  He further found that the employee=s physician essentially disabled the employee from working unless under the most stringent restrictions.  He found that the employee has followed the advice of the physician and such rehabilitation assistance as provided.  (See Order on Remand issued by Judge Rieke on February 14, 2000).  The Compensation Judge has carefully reviewed the voluminous record and finds nothing to change the Findings of Judge Rieke until the report of Dr. Wicklund dated September 5, 2000.  Dr. Wicklund concluded that the employee was able to resume work subject to reasonable restrictions.  The Compensation Judge found no other restrictions in the file that were issued between January 15, 1999 and September 5, 2000.

 

After review of the record and relevant case law, we conclude that Judge Erickson erred in giving res judicata effect to Judge Rieke=s decision, with regard to the issue of the employee=s alleged temporary total disability after the January 15, 1999, hearing.

 

Res judicata may be applicable, in some instances, in workers= compensation matters, but it applies only to issues actually litigated and decided in the previous proceeding.  See, e.g., Westendorf v. Campbell Soup Co., 243 N.W.2d 157, 158, 28 W.C.D. 460, 460 (Minn. 1976).  Moreover, in a second claim for the same kind of benefits, no substantial change in condition or circumstances need be proven; rather, Awhat is required is proof of an actual disability during the period of time for which benefits are claimed . . . [which] may entail new evidence covering the subsequent period of time@ but not necessarily evidence of a material change in condition.  Lindberg v. J & D Enterprises, 543 N.W.2d 90, 90, 54 W.C.D. 44, 52 (Minn. 1996) (order opinion).  In the present case, the employee=s entitlement to benefits after January 15, 1999, was not and could not have been litigated and determined at the hearing before Judge Rieke.

 

We would also observe that many circumstances did in fact change between the two hearing dates.  The hearing before Judge Rieke took place less than seven months after the employee=s last low back injury, and the employee had not reached MMI as of that date.^[8]  By the time of the hearing before Judge Erickson, the employee had undergone additional treatment, such as the chronic pain program, and the parties presented a substantial amount of evidence concerning the employee=s travel, leisure, and daily activities during the period following the first hearing.^[9]  Clearly Judge Erickson was entitled to take all of this evidence into account in considering whether the employee was capable of working or had in fact retired.

 

Contrary to the employee=s contention, Judge Erickson was entitled to accept Dr. Wicklund=s opinion as to the employee=s restrictions and ability to work, as well as Mr. VanWagner=s opinion as to the employee=s employability.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The judge was also entitled to consider the employee=s testimony regarding his vacation travel and driving, his hunting, fishing, and camping, and gardening activities, and his wife=s disability status, in concluding that the employee had retired for reasons unrelated to his work injury.  The fact that the employee=s treating physicians issued reports indicating continuous medical disability is not determinative; the compensation judge could have accepted the doctors= opinions in that regard, but he was not required to do so.  As such, while the compensation judge did not err in finding retirement and/or withdrawal from the labor market as of September 5, 2000, he did err in awarding the employee benefits through that date based simply on his conclusion that Judge Rieke=s decision dictated that result in the absence of some evidence of a change in circumstances.  A remand is therefore required for reconsideration of the employee=s temporary total disability claim from January 16, 1999, through September 5, 2000.^[10]

 

                        In summary of our decision on the temporary total disability issue, the employee is entitled to temporary total disability benefits for the 50-day period described above, based on National Union=s failure to file an NOID.  Judge Erickson=s denial of temporary total disability benefits after September 5, 2000, is affirmed on grounds of retirement and/or withdrawal from the labor market, in that the judge did not err by deciding the temporary total disability issue differently than Judge Rieke had in the earlier hearing, and in that substantial evidence supports Judge Erickson=s decision.  As for the judge=s award of temporary total disability benefits through September 4, 2000, we reverse and remand the matter to the judge for reconsideration, without reference to Judge Rieke=s decision, which has no res judicata effect with respect to that period.  We would note in this regard that the simple fact that Dr. Wicklund did not recommend specific restrictions until September 5, 2000, does not necessarily mean that the employee was physically incapable of working prior to that date.  In conjunction with his reconsideration of this period of benefit eligibility, the judge may need to reconsider whether the employee=s work-related low back injury remained a substantial contributing cause of his disability during his treatment and hospitalization for leukemia.  See Salmon v. Wheelbrator Frye, 409 N.W.2d 495, 40 W.C.D. 117 (Minn. 1987).

 

5.  Treatment Expenses

 

National Union also appeals from the judge=s award of expenses for treatment at the Mayo pain clinic program, for the employee=s treatment by Ms. Clemensen at ISJ Clinic - Northridge, and for one office visit to see Dr. Herrmann, the employee=s family physician.

 

We reverse the award of the treatment expense related to the visit with Dr. Herrmann. as the order for payment in that regard is clearly due to clerical error.  In his findings, the judge wrote as follows with regard to that expense:

 

The employee was seen by Dr. Herman for consultation on May 23, 2001.  The main problem seemed to be his anxiety and some depression as well as some problems with medication for depression contributing to suppression of sexual function.  There was no back examination conducted by Dr. Herman.  The employee did report that he had been successful in turkey hunting on his farm and was also doing some fishing.  The charge for the consultation was $65.00.  This amount has not been established by a preponderance of the evidence as being treatment causally related to the employee=s work injury.

 

Given the judge=s conclusion, affirmed on appeal, that the employee=s psychological condition is not work-related, it is apparent that the judge did in fact intend to deny payment of this particular charge.

 

However, substantial evidence in the record supports the judge=s award of expenses associated with the Mayo Clinic pain program.  As the judge noted, the employee was referred for participation in this program in order to receive Acomprehensive pain rehabilitation related to [his] low back pain.@  As the judge also noted, the employee successfully weaned himself from narcotic pain relievers through participation in the program, as well as learning proper body mechanics and strategies for dealing with his ongoing symptoms.  It may be true, as National Union points out, that no physician specifically characterized the program as Areasonable and necessary.@  However, contrary to National Union=s implication, no express medical opinion is necessarily required to support a finding of compensability.  Reasonableness and necessity is a fact issue, and the record reasonably supports the judge=s award here.

 

As for the judge=s award of treatment expenses for care rendered by Ms. Clemensen at ISJ Clinic - Northridge, we reverse and remand the matter for reconsideration.  The fact that the referral to Ms. Clemensen was made by pain clinic providers does not necessarily establish that the need for the referral was causally related to the employee=s low back injury, as opposed to the employee=s nonwork-related psychological condition.  Ms. Clemensen is, after all, a psychologist, and her treatment records would seem to indicate an emphasis on the employee=s depression and anxiety over the then-upcoming workers= compensation proceeding.  Also, contrary to the compensation judge=s suggestion, we see no real indication that the referral to Ms. Clemensen had anything to do with assuring that the employee remain off narcotics.  On the other hand, there are some references in the record, not mentioned by the compensation judge, that Ms. Clemensen may have reinforced pain coping strategies first implemented during the employee=s inpatient pain program.  Because we are not convinced that the compensation judge=s rationale is sound, and because the record would perhaps support more than one possible result, we deem it appropriate to reverse and remand for reconsideration and further findings.