TRUDITH L. WOLDMOE, Employee/Appellant, v. KNIGHT RIDDER and TRAVEL­ERS INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 20, 2002

 

HEADNOTES

 

MAXIMUM MEDICAL IMPROVEMENT - MULTIPLE CONDITIONS; MAXIMUM MEDICAL IMPROVEMENT - SERVICE OF MMI REPORT.  Before a compensation judge may reach the factual issue of whether an employee has reached MMI, the judge must find the employee was served with a written medical MMI report or reports indicating that no further significant recovery or lasting improvement is anticipated for all conditions suffered by the employee as the result of a personal injury.  In this case, the compensation judge erred in permitting a discontinuance of temporary total disability benefits based on attainment of MMI, where the only medical report submitted addressed only one of the multiple conditions suffered by the employee as the result of her December 29, 1988 personal injury.

 

Reversed.

 

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

Compensation Judge: Bradley J. Behr

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s finding that she has reached maxi­mum medical improvement from the effects of her personal injury, and the judge=s order allowing the employer and insurer to discontinue temporary total disability benefits effective March 18, 2002. 

 

BACKGROUND

 

Trudith Waldmoe, the employee, was injured on December 29, 1988, while working for Knight Ridder, the employer, insured by Travelers Insurance Company.  The employer and insurer admitted liability for the employee=s personal injury.  The employee was off work for several days as a result of her injury and then returned to work at her regular job with the employer. 

 

In November 1991, the employee quit her job with the employer and moved with her husband from Duluth, Minnesota, to California.  In California, the employee treated with a number of doctors in the San Francisco area, including Dr. Fillmore S. Rodich, her primary treating phy­sician, Dr. Robert Byers, an orthopedic surgeon, and Dr. Marvin B. Zwerin, an osteopathic prac­titioner.  On January 15, 1996, Dr. Byers performed an anterior cervical discectomy and fusion at C5-6.  The doctor=s post-operative diagnosis was degenerative disc disease at C5-6 with bilateral foraminal stenosis.

 

In March 1996, the employee filed a claim petition seeking temporary total disability benefits from and after November 17, 1991.  The case was heard by Compensation Judge Danny Kelly at the Office of Administrative Hearings in March 1998.  At issue was the nature and extent of the em­ployee=s admitted personal injury, the employee=s claim for temporary total disability benefits, and the employer=s assertion that the employee had reached maximum medical improvement (MMI).  In an unappealed Findings and Order filed May 14, 1998, the compensation judge found the December 29, 1988 personal injury was a substantial contributing cause of, or factor in, a  temporomandibular joint (TMJ) and headache condition, arthritis of the hands, wrists and ankles, degenerative disc disease of the cervical spine, a closed head injury and headache condition and bilateral upper ex­tremity reflex sympathetic dystrophy.  (Findings 31-35.)  The compensation judge further found:

 

It is determined that the employee has not attained maximum medical improvement from the effects of the December 29, 1988 personal in­jury.  The employee suffers chronic pain as a result of the December 29, 1988 personal injury.  It has been recommended that the employee participate in a pain program.  The goals of the chronic pain program would be to increase the employee=s ability to function and decrease the employee=s reliance upon medication.

 

(Finding 38.)

 

It is determined that the employee did not attain maximum medical improvement with the service of Dr. Sura=s Maximum Medical Improvement Physician=s Report completed December 20, 1989.  Dr. Sura lacks adequate medical foundation for his opinion of maximum medical improvement.  Dr. Sura=s opinion is based upon assumptions.

 

(Finding 39.) 

 

The employee was examined by Dr. Gruber at North Bay Pain Care on July 9, 1998.  The employee, however, decided she preferred to participate in a pain clinic at the Kentfield Rehabilitation Hospital under the care of Dr. Zwerin.  The insurer apparently refused authorization for this program.  Following a second hearing before Judge Kelly, the employer and insurer were ordered to pay the expenses for the employee=s participation in a pain clinic at the Kentfield Rehabilitation Hospital.  (Findings and Order January 16, 2001.)  Dr. Zwerin then re-examined the employee and by report dated February 27, 2001, recommended a six to eight week pain program.  (Resp. Ex. 1.)  Over the course of one week, the employee saw a physical therapist, an occupational therapist and a psychologist with the Kentfield Pain Treatment Center.  By report dated June 4, 2001, Dr. Zwerin concluded the employee was not an appropriate candidate to continue with the pain program.  The employee was instructed to follow up with Dr. Zwerin for medical management as appropriate. (Resp. Ex. 2.) 

 

On October 22, 2001, a claim representative of the insurer wrote to Dr. Zwerin asking whether the employee had sustained any permanent partial disability and whether the employee had reached maximum medical improvement.  Dr. Zwerin wrote Ayes@ to both questions on the insurer=s letter, signed his name and dated it November 9, 2001.  (Resp. Ex. 3.)  This report was properly served on the employee.  By report dated June 9, 2002, Dr. Zwerin responded to a letter from the employee=s attorney stating:

 

I had stated in an earlier report that I felt that Ms. Woldmoe was at MMI.  It was my intention that the determination was solely appli­cable to the chronic pain syndrome for which she was under active treatment, at the time, at The Pain Treatment Center.  It was in no way my intention that the statement would be interpreted to cover the entirety of her problems, including her cervical fusion/DDD/, TMJ with headaches, Closed Head Injury sequelae and/or joint problems/ arthritis.

 

(Pet. Ex. C, p.4.)

 

The employer and insurer filed a Notice of Intention to Discontinue Benefits (NOID) contending the employee had reached MMI based on Dr. Zwerin=s November 9, 2001 report.  The employee objected to the proposed discontinuance and the case was heard before Compensation Judge Behr on June 13, 2002.  No witnesses were called by either party.  The only evidence submitted at the hearing was the medical reports from Dr. Zwerin dated February 27, 2001 (Resp. Ex. 1), June 4, 2001 (Resp. Ex. 2), November 9, 2001 (Resp. Ex. 3), and June 9, 2002 (Pet. Ex. C).  In a Findings and Order filed June 28, 2002, the compensation judge found the employee had not experienced  improvement from any of her injury-related complaints since May 1998, and found there was no evidence regarding any prospective treatment reasonably expected to offer the employee any signi­ficant lasting improvement from any of her injury-related conditions.  The compensation judge found the employee had reached maximum medical improvement from the effects of her injuries on or before June 4, 2001, the date she was determined not to be an appropriate candidate for chronic pain treatment.  Accordingly, the compensation judge allowed the employer and insurer to discontinue temporary total disability benefits.  The employee appeals. 

 

DECISION

 

Maximum medical improvement is defined as Athe date after which no significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability.  Minn. Stat. ' 176.011, subd. 25.  ANinety days after an employee has reached maximum medical improvement and the medical report described in clause (c) has been served on the employee. . ., the employee=s temporary total compensation shall cease.@  Minn. Stat. ' 176.101, subd. 3e(a) (1983).  The medical report described in clause (c) is defined as Aa written medical report indicating that the employee has reached maximum medical improvement.@  Minn. Stat. ' 176.101, subd. 3(c). 

 

Minn. Stat. ' 176.101, subd. 3e, allows a discontinuance of temporary total compensation only if two conditions are met: (1) the employee must have reached maximum medical improvement, and (2) a medical report indicating the employee has reached maximum medical improvement must be served upon the employee.  Maximum medical improvement is not effective until the required medical report is served and filed.  Sletten v. American Hoist & Derrick, 39 W.C.D. 346 (W.C.C.A. 1987); Cassem v. Crenlo, Inc., 470 N.W.2d 102, 44 W.C.D. 484 (Minn. 1991).  Thus, before the compensation judge may reach the factual issue of whether the employee has reached maximum medical improvement, the judge must find the employee was served with a written MMI report.

 

There is no dispute Dr. Zwerin=s November 9, 2001 report was properly served on the employee.  The compensation judge found Dr. Zwerin=s June 9, 2002 report did not invalidate the prior service of his November 9, 2001 MMI note in terms of the procedural requirements for a  discontinuance of benefits.  (Finding 4.)  The compensation judge apparently concluded the November 9^th MMI note was procedurally adequate under the statute because it afforded the employee sufficient notice of the reason for the proposed discontinuance.  We disagree.

 

Service upon the employee of an MMI report is more than simply a notice require­ment.  Were this not so, the required MMI report could be prepared by a claims adjuster rather than a physician.  As a precondition to a discontinuance of benefits under Minn. Stat. ' 176.101, subd. 3e, the employee must be served with a medical report indicating the employee has reached maximum medical improvement from all injuries and conditions.  Thus, the issue in this case is whether Dr. Zwerin=s MMI note of November 9, 2001, was statutorily sufficient, under Minn. Stat. ' 176.101, subd. 3e, to support a discontinuance of temporary total disability benefits.  We conclude it was not. 

 

As a general rule, the employee must reach MMI from all compensable injuries that contribute to the employee=s disability before benefits may be discontinued.  Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989); Schewe v. Tom Thumb Food Stores, 46 W.C.D. 693 (W.C.C.A. 1992)(summarily aff=d June 22, 1992).  In this case, the employee suffered a single injury rather than multiple personal injuries.  But, that single personal injury resulted in multiple discrete, diagnosed conditions.  It is not unusual that a single work-related incident or Apersonal injury@ causes injury to different body parts and also causes a traumatic disorder or a chronic pain syndrome necessitating treatment by various medical specialties.  With respect to the concept of maximum medical improvement, we see no reason to distinguish multiple conditions resulting from multiple injuries from multiple conditions resulting from a single personal injury.  In either case, the question is whether any further significant recovery or significant lasting improvement from the effects of the injury (or injuries) may be anticipated. 

 

The only written MMI report in evidence in this case is Dr. Zwerin=s hand-written note of November 9, 2001.  The compensation judge found that report contained sufficient information to communicate the medical opinion that the employee had attained MMI from the effects of her December 29, 1988 personal injury.  (Finding 2.)  We find no substantial evidence supporting this finding.  In addition to the chronic pain syndrome, the employee=s personal injury also caused other separately diagnosed conditions for which she received treatment.^[1]  Dr. Zwerin, however, treated the employee only for her chronic pain syndrome.  In his report of June 9, 2002, Dr. Zwerin specifically limited his MMI opinion to the employee=s chronic pain syndrome.  The employee treated with a number of other physicians for other conditions caused or aggravated by her personal injury.  The employee was served no medical report stating she had reached MMI from anything other than her chronic pain syndrome.  Absent service on the employee of a written medical report stating the employee has reached maximum medical improvement from the effects of her personal injury, benefits may not be discontinued.  The lack of such a report requires a denial of the proposed discontinuance. 

 

The employer and insurer next argue Judge Kelly, in his May 14, 1998 Findings and Order, explicitly found the employee had reached maximum medical improvement from all conditions except the chronic pain syndrome for which, the judge found, further treatment was recommended.  Thus, the appellant argues, with Dr. Zwerin having opined the employee reached MMI from the effects of the chronic pain syndrome, the compensation judge properly allowed the insurer to discontinue benefits.  We disagree.

 

One of the issues before Judge Kelly in 1998, was whether the employee had reached maximum medical improvement from the effects of the 1988 personal injury.  The only MMI report referred to in Judge Kelly=s May 1998 Findings and Order was that of a Dr. Sura dated December 20, 1989.  In an unappealed finding, however, Judge Kelly concluded Dr. Sura=s MMI report lacked adequate medical foundation and was based upon assumptions.  The compensation judge rejected Dr. Sura=s opinion and concluded the employee did not attain maximum medical improvement with the service of his report.  (Finding 39.)  There is no evidence any other MMI report was ever served upon the employee until service of Dr. Zwerin=s report on November 9, 2001.  Further, the employee underwent significant medical treatment after December 20, 1989, including a discectomy and fusion by Dr. Byers in 1996.  For these reasons, we cannot conclude Judge Kelly found on May 14, 1998, that the employee had reached maximum medical improvement from all conditions save the chronic pain syndrome.  Accordingly, the decision of the compensation judge discontinuing temporary total disability benefits is reversed.