Anderson v. State, Dep't of Natural Resources

CYNTHIA K. ANDERSON, Employee, v. STATE, DEP=T OF NATURAL RESOURCES, SELF-INSURED, Employer/Appellant, and BLUE CROSS/BLUE SHIELD OF MINN. AND BLUE PLUS, METROPOLITAN ORTHOTIC LAB., INC., and HICKOK & SCHULTZ, P.A., Intervenors.

EVIDENCE - RES JUDICATA. Where the first hearing involved a claim that a specific injury occurred on April 3, 2000, and the second hearing involved a claim of a Gillette injury that was neither tried nor decided at the prior hearing, the doctrine of collateral estoppel or res judicata was not applicable and did not bar the employee=s claim.

EVIDENCE - EXCLUSION. In this case, the compensation judge properly disallowed the direct testimony of the employer=s witness under Minn. R. 1415.1900, subp. 7, for failure to disclose the witness prior to trial. The offer of proof is insufficient to examine the compensation judge=s ruling excluding rebuttal testimony, or to determine whether the ruling prejudiced the employer, and the decision is, therefore, affirmed.

CAUSATION - SUBSTANTIAL EVIDENCE. The employee=s testimony, in combination with the adequately founded opinion of Dr. Wengler, provides substantial support for the compensation judge=s determination that the employee sustained a Gillette injury as a result of her work activities for the employer.

Affirmed

Attorneys: Peter Banovetz, Kyle T. Kustermann, Aafedt, Forde, Gray & Monson, Minneapolis, MN, for Appellant. Mark G. Olive, Sieben, Grose, Von Holtum & Carey, Minneapolis, MN, for Respondent.

The self-insured employer appeals the compensation judge=s determination that the doctrine of res judicata did not bar the employee=s claim that she sustained a Gillette[1] injury. We affirm.

Cynthia K. Anderson, the employee, was hired in May 1980 as a seasonal worker by the State of Minnesota, Department of Natural Resources, the employer, which is self-insured for workers= compensation liability. In 1990, the employee began working for the employer as a buildings and grounds worker at St. Croix State Park. The employee typically worked from the beginning of April to the end of October, when she was laid off. At the start of each season, the employee was part of a crew which cleaned and maintained 189 park buildings. The employee=s duties included turning mattresses, washing walls and windows, mopping floors and painting walls. When these tasks were completed, the employee typically spent twelve weeks working with the Minnesota Conservation Corp, supervising groups of young persons working on maintenance projects. The employee ended the season mowing trails, painting and performing odd jobs on buildings. In a typical season, the employee spent two to two and a half months cleaning buildings, twelve weeks with the youth program, and approximately a month mowing trails and performing building maintenance.

In August 1995, the employee was seen at the Hinckley Chiropractic Center complaining of low back pain which she stated had been chronic for years but was getting worse. The employee stated she had worked as a roofer in the past and related her symptoms to that job. The employee returned to the center for treatment on four occasions.

Between December 1999 and March 2000, the employee worked one day per week at the Hinckley Inn cleaning guest rooms. Normally, two persons were assigned to each room. One person changed bed linens, dusted and vacuumed, while the other scrubbed the sink, toilet and tub, wiped the mirrors and replaced the used towels with fresh ones. In early March 2000, the employee began working three to four days per week at the Hinckley Inn. Shortly thereafter, the employee experienced the onset of low back symptoms.

The employee was seen at the Mora Chiropractic Clinic on March 20, 2000, and gave a history of intermittent low back symptoms for many years, dating back to the late 1980s. In an answer to a question on a patient information form about the cause of her symptoms, the employee wrote, AStarted cleaning rooms at Grand Hinckley Inn, lifting and bending, temporary till I go back to my other job.@ The treating chiropractor advised the employee to see a medical doctor for medication. The employee saw Dr. Terry Johnson at the Allina Medical Clinic on March 21, 2000, complaining of low back pain. On examination, Dr. Johnson noted low back tenderness with good range of motion and negative straight leg raising. The doctor diagnosed low back pain and prescribed Naprosyn and physical therapy. The employee was evaluated at the physical therapy department at Kanabec Hospital on March 29, 2000. She reported low back pain since at least 1995 which she attributed to her work as a roofer. The physical therapist reported the employee had decreased lumbar mobility and strength, decreased left hip flexion strength, an antalgic gait pattern and demonstrated obvious discomfort with transfers and pain with any prolonged position.

The employee returned to work for the employer on April 3, 2000. The employee was then taking prescription medication but had no restrictions on her work duties. That day, the employee used a power scrubber to clean a floor. The employee stopped using the machine after about 15 minutes because she felt an increase in low back pain. The employee filled out an injury report and then rejoined the cleaning crew. The employee saw a physical therapist on April 5, 2000, and provided a history of increased low back pain after running a floor cleaner. A regimen of physical therapy was commenced. On April 12, 2000, the employee reported she was feeling great and was able to do all of her activities without pain. On May 1, 2000, the employee stated she was doing quite well, but was performing very vigorous tasks at her job at the St. Croix State Park which caused her symptoms to flare up.

The employee returned to see Dr. Johnson on May 9, 2000, complaining of continued low back pain with radiation into the right buttock. The employee stated she was doing a lot of bending and leaning over while cleaning at work and, after work, her back hurt. On examination, the doctor noted tenderness over the sacrum but the employee=s range of motion was essentially normal. Dr. Johnson ordered an MRI scan which showed degenerative disc disease at L4-5 with a moderate posterior bulge and severe degeneration at L5-S1 with moderate narrowing of the foramina bilaterally. On May 23, 2000, Dr. Johnson referred the employee to Dr. Maria Zorawska for a surgical consultation.

The employee saw Dr. Zorawska on July 7, 2000 and gave a history of low back pain for several years which became worse on March 20, 2000 after prolonged bending. On examination, Dr. Zorawska noted tenderness over the paravertebral areas of the low back but the neurological tests were normal. The doctor diagnosed chronic low back pain secondary to disc degeneration and released the employee to work at a light-duty job. Dr. Zorawska prescribed facet joint injections, and on September 22, 2000, prescribed Celebrex. In October 2000, the doctor prescribed facet nerve injections followed by percutaneous radiofrequency facet nerve blocks. In January 2001, Dr. Zorawska referred the employee to Dr. Richard M. Salib, whom she saw on February 2, 2001. Dr. Salib opined the employee was not a candidate for an IDET procedure but recommended an anterior/posterior fusion. On March 15, 2001, Dr. Zorawska reduced the employee=s light-duty hours to four hours per day. On May 10, 2001, the employee underwent an anterior/posterior interbody fusion at L4-5 and L5-S1.

Dr. Mark Engasser examined the employee on November 14, 2000, at the request of the employer and insurer. He diagnosed degenerative disc disease at L4-5 and L5-S1. The doctor concluded the employee had acute low back pain prior to returning to work for the employer, stated the employee=s work duties on April 3, 2000 did not aggravate her pre-existing condition, and concluded the employee did not sustain a work injury on April 3, 2000. In March 2001, Dr. Engasser reviewed some additional medical records and prepared a second medical report. The doctor again diagnosed chronic degenerative disc disease at L4-5 and L5-S1 and opined the employee=s work at the Hinckley Inn was a substantial contributing cause of her low back condition. Dr. Engasser stated the alleged April 3, 2000 injury was not a substantial contributing factor in her current diagnosis or need for treatment.

The employee was examined by Dr. Robert A. Wengler on June 12, 2001, at the request of her attorney. The doctor diagnosed a chronic lumbar disc syndrome with segmental instability, status post two-level decompression and fusion at L4-5 and L5-S1. Dr. Wengler opined the employee developed an acute lumbar disc syndrome in the spring and summer of 2000 that developed as a function of her work activities at the St. Croix State Park. The doctor opined the motel cleaning job in March 2000 generated symptoms but was not a substantial contributing cause of the employee=s ultimate disability.

By report dated July 18, 2001, Dr. Engasser stated he reviewed Dr. Wengler=s report and disagreed with his conclusions. The doctor stated the employee clearly had a pattern of low back problems prior to returning to work with the employer. The doctor again opined the employee did not sustain an injury on April 3, 2000, and stated the employee=s symptoms after returning to work for the employer were an ongoing manifestation of her pre-existing low back condition.

The employee filed a claim petition alleging a personal injury on April 3, 2000. The case was heard by Compensation Judge Jennifer Patterson on June 27, 2001. The compensation judge specifically found, in a Findings and Order filed August 20, 2001, that the employee moved, on the date of the hearing, to amend her claim to allege a Gillette injury culminating in disability on April 3, 2000 or some date thereafter. The judge also found the employer objected to adding the issue of minute trauma to the case, and the compensation judge sustained the objection. Finally, the judge found the employee failed to prove she sustained a specific injury to her low back on April 3, 2000. There was no appeal from the compensation judge=s findings and order.

Dr. Wengler re-examined the employee on January 23, 2003. The doctor stated it remained his opinion that the employee=s work activities with the employer resulted in multiple episodes of subacute trauma to her low back. Dr. Wengler opined the employee=s work activities during the summer of 2000 materially aggravated the employee=s degenerative disc disease and constituted a Gillette injury. Dr. Engasser reviewed Dr. Wengler=s January 2003 report and stated his opinions were unchanged. The doctor opined the employee=s work activities at the St. Croix State Park did not aggravate or accelerate her underlying degenerative disc disease and concluded the employee did not sustain a Gillette injury during the 2000 season.

The employee filed a second claim petition, alleging entitlement to benefits as a result of a Gillette-type personal injury on July 7, 2000. In a Findings and Order filed April 9, 2003, Compensation Judge Brenden found the doctrine of res judicata did not bar the employee=s claim for workers= compensation benefits resulting from a Gillette injury. The judge found the employee=s work activities for the employer from April 3 to July 7, 2000, permanently aggravated/accelerated the employee=s low back condition. The compensation judge found the employee sustained a Gillette injury on July 7, 2000, and awarded benefits.[2] The self-insured employer appeals.

DECISION

1. Res Judicata

The appellant first argues the doctrine of res judicata bars the employee from asserting a claim of a Gillette injury arising out of the course of her employment. Accordingly, the appellant asks this court to vacate the compensation judge=s decision. We decline to do so.

The doctrines of res judicata and collateral estoppel preclude litigation of issues and claims that were decided in an earlier decision. Fischer v. Saga Corp., 498 N.W.2d 449, 48 W.C.D. 368 (Minn. 1993). The doctrine of collateral estoppel is employed to prevent parties to an action from re-litigating in a subsequent action issues that were determined in the first action. In re Special Assessment for a Water Main Extension in the Village of Byron, 255 N.W.2d 226, 228 (Minn. 1977). Collateral estoppel is properly applied in the following circumstances: (1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the party sought to be estopped was a party or privity with a party to the prior adjudication; and (4) the party sought to be estopped was given a full and fair opportunity to be heard on the adjudicated issue. Nelson v. American Family Ins. Group, 651 N.W.2d 499, 511 (Minn. 2002). Neither collateral estoppel nor res judicata is rigidly applied, however, and the focus is on Awhether its application would work an injustice on the party against whom estoppel is urged.@ Johnson v. Consolidated Freightways, 420 N.W.2d 608, 613 (Minn. 1998).

At the first hearing, the employee asserted she sustained a specific injury on April 3, 2000, but sought to expand the issues to also allege a Gillette injury. The compensation judge denied the employee=s request, in part because the employer asserted it was unprepared to present evidence to defend the claim of a Gillette injury. Thus, the sole issue litigated at the hearing was whether the employee sustained a specific injury on April 3, 2000. The issue at the second hearing was whether the employee sustained a Gillette injury arising out of and in the course of her employment with the State of Minnesota. Whether the employee sustained a Gillette injury is a different issue than whether the employee sustained a specific injury. The issues in the two proceedings were not identical and the employee was not provided a full and fair opportunity to be heard on the alleged Gillette injury at the first hearing. Accordingly, the doctrine of collateral estoppel is not applicable.

2. Substantial Evidence

The appellant next argues substantial evidence does not support the compensation judge=s finding that the employee sustained a Gillette injury arising out of her employment with the employer. In Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994), the supreme court held the determination of whether the employee sustained a Gillette injury primarily depends upon the medical evidence. In this case, the appellant argues there is no medical evidence that the employee=s condition worsened due to her work activities after the non-work flare-up of her condition in March 2000. The appellant further contends Dr. Wengler=s opinion lacks foundation because the doctor provided no evidence that the employee=s objective medical condition changed between March and July 2000, the doctor described no specific work activities which allegedly caused the injury and the doctor provided no culmination date for the Gillette injury. Accordingly, the self-insured employer seeks a reversal of the compensation judge=s finding.

When she returned to work on April 3, 2000, the employee performed her usual duties of cleaning and maintaining the 189 buildings, which she performed until the end of June 2000. The employee testified as to the specific duties involved in cleaning the cabins and stated these duties were more physically difficult for her than they had been the year before. She testified she had mild low back pain when she returned to work on April 3, 2000, but stated this pain gradually progressed to include leg and buttock pain. She testified the more work she did the more her back and leg pain increased, to the point where she was experiencing back spasms at the end of each day. By early June, the employee testified she had continuous back and leg pain.

Dr. Wengler took a history from the employee when he first examined her in June 2001. The employee told Dr. Wengler she was essentially asymptomatic when she returned to work on April 3, 2000, but operated a floor scrubber that day causing low back pain which worsened over the next two and a half months. The employee stated she was doing a great deal of cleaning, heavy-duty mopping, and lifting and bending in her work with the employer. Dr. Wengler=s history is consistent with the employee=s testimony about her job duties. There is no requirement in the law that to establish a Gillette injury the employee must prove an objective change in medical condition. Rather, the question is whether the cumulative effect of the work activities was a substantial contributing cause of disability. Dr. Wengler testified it was. Further, the employee testified to a gradual progression of low back pain after April 3, 2000. This testimony, in combination with the opinion of Dr. Wengler, supports the compensation judge=s decision. Finally, an opinion as to the culmination date of a Gillette injury is not a foundational requirement for an opinion that the employee sustained a Gillette injury. Dr. Wengler=s opinion was adequately founded and the compensation judge could rely upon it.

3. Exclusion of Testimony

At the hearing on February 27, 2003, counsel for the appellant sought to call as a witness Jack Nelson, the park manager. The employee objected to the proposed testimony because Mr. Nelson was not identified as a witness. The judge stated that at a pre-trial conference, she gave the employer 10 days within which to identify the names of two employer witnesses, which the employer did not do. Accordingly, the compensation judge did not allow Mr. Nelson to testify. The appellant contends the judge=s ruling violated Minn. Stat. ' 176.411, subd. 1, which requires that a hearing Abe conducted in a manner to ascertain the substantial rights of the parties.@ Further, the appellant argues the workers= compensation rules and case law Agenerally favor the admission, not exclusion, of relevant evidence.@ Hasson v. Nankin Café, slip op. (W.C.C.A. May 26, 1994). The employer asserts Mr. Nelson would have testified about the employee=s job duties. Since the issue was whether the employee sustained a Gillette injury, the appellant argues, the testimony was crucial to the employer=s case. Finally, the appellant argues Mr. Nelson=s testimony was to rebut the employee=s testimony regarding the physical requirements of her job and rebuttal witnesses are not required to be disclosed at the pre-trial conference. For these reasons, the appellant seeks a remand to allow it to present Mr. Nelson=s testimony.

Generally, a compensation judge has broad discretion regarding the admissibility of evidence in a workers= compensation hearing. Minn. Stat. ' 176.411, subd. 1; Bey v. Oxford Props., Inc., 481 N.W.2d 40, 46 W.C.D. 198 (Minn. 1992). To warrant reversal, the compensation judge=s ruling on the admissibility of evidence must be prejudicial as well as erroneous. See McGuire v. Merillat Indus., Inc., slip op. (W.C.C.A. July 27, 1993). Minn. R. 1415.1900, subp. 7, provides that evidence not disclosed at a pre-trial conference may not be presented at the hearing.[3] Under the rule, the compensation judge properly disallowed the direct testimony of Mr. Nelson. See Singer v. Thermotron, 51 W.C.D. 259 (W.C.C.A. 1994). Although the rule does not require disclosure of rebuttal witnesses, we find no prejudice to the appellant by the judge=s ruling.

Counsel for the appellant made the following offer of proof at the hearing:

MR. BANOVETZ: His testimony, Your Honor, would relate to, No. 1, an exhibit, and if he can=t testify I=ll certainly offer the exhibit, but it just recites the time that the employee missed from work during the calendar year 2000 primarily focusing on the period April through early July of 2000 and the references to about fourteen physical therapy sessions. And he was also going to testify about the instruction to not only the employee after she reported or filed a First Report of Injury about being careful about what she does, don=t do anything to, you know, aggravate your back, or do anything beyond any, you know, physical capabilities. So instructed, you know, others on the cleaning crew that if anybody that had work restrictions, and as the employee indicated there was one other person that had work restrictions on the cleaning crew, that, you know, they should ask for help, get help, not do it. And that there was on April 20th a redirection of about four to five men from a different crew to go and work on the mattresses at the particular camp where the employee was working.

The appellant=s offer of proof does not state that Mr. Nelson would testify regarding the employee=s job duties or the physical requirements of her job. Neither does the offer of proof specify how Mr. Nelson=s testimony would rebut the employee=s testimony. An offer of proof must provide a specific description of the excluded evidence so that this court can review the compensation judge=s ruling and determine whether the ruling prejudiced the employer. The offer of proof was insufficient to establish the compensation judge=s ruling was erroneous and prejudicial. Accordingly, the compensation judge=s decision is affirmed.

[1] See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).

[2] The parties stipulated to the payment of certain wage loss benefits and medical expenses if the employee=s low back condition was found to be causally related to a work-related Gillette injury.

[3] The rule provides certain exceptions, none of which are applicable in this case.