JAMES E. LEONARD, Employee/Appellant, v. YELLOW FREIGHT SYS., INC., SELF-INSURED, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 18, 2003

 

 

HEADNOTES

 

MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE.  Substantial evidence, including the employee=s testimony, medical records, and expert medical opinion, supported the finding that the employee had reached maximum medical improvement from his January 10, 2001 work injury as of August 21, 2002.

 

Affirmed.

 

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

Compensation Judge: Cheryl LeClair-Sommer.

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the compensation judge=s finding that the employee reached maximum medical improvement (AMMI@) from his January 10, 2001 work injury as of August 21, 2002.  We affirm.

 

BACKGROUND

 

The employee, James E. Leonard, started performing dock work for the employer, Yellow Freight, in 1988.  This work involved loading and unloading trucks both by hand and with a pallet jack and could require the employee to lift as much as 80 pounds. 

 

In about September 1991 the employee sustained a work injury to his low back when he caught an 80-pound box.  He treated with various physicians, was taken off work, and released to return to work in February 1992.  In December 1992 he was taken off work again due to increased back pain and then returned to work under restrictions in March 1993.  He eventually returned to work at his regular job.  He continued to treat periodically for back pain over the years.

 

On January 10, 2001, the employee sustained injury to his low back while raising and lowering a dock plate.  He experienced low back pain and pain into his legs, for which he treated with Dr. Dale Duthoy, who had already been treating his back complaints for several years.  The employee was treated with medication and physical therapy and was taken off work until January 30, 2001, when he returned to his regular duties.  He tried his usual job for about a week, but when it proved too painful he returned to light duty work doing vacation replacement driving, which he continued to perform until August 2001.  The employee testified that his condition then plateaued by about February 7, 2001, leaving him with pain in the low back into the hips but without any pain in the legs.  On March 21, 2001, Dr. Duthoy signed a health provider report indicating that the employee had reached maximum medical improvement on February 7, 2001. 

 

The employee testified that by about June 2001 he noticed that he was starting to experience increasing spasm in his legs and by August 19, 2001, he was not able to continue working due to back spasms.  He had left leg pain which later shifted to the right leg.  He was briefly hospitalized in August for right leg pain and back spasms and then continued to treat with Dr. Duthoy who also referred him to a neurosurgeon, Dr. Richard S. Gregory.  The employee was completely off work until October 1, 2001, when the employer provided him with light duty office work until February 2002.

 

By October 31, 2001, when he was first seen by Dr. Gregory, his right leg pain was gone.  On that date, Dr. Gregory noted that the employee=s chief complaint was pain in the left buttock, although he continued to also have some low back pain.  The employee told Dr. Gregory that his recent pain flare-up in August had improved significantly.  Dr. Gregory noted that lumbar and pelvis x-rays had both been negative and that a recent MRI scan showed a bulging disc at L4-5  to the right.  He noted that the employee=s MRI findings did not explain either left buttock pain or pain on the left side.  Dr. Gregory recommended a left hip x-ray and conservative treatment to include physical therapy.  If the employee=s symptoms continued to persist, Dr. Gregory thought a new MRI scan might be advisable since the employee=s current symptoms were new and on the left rather than on the right. 

 

The employee returned to Dr. Gregory for a follow-up examination on December 12, 2001.  At that time, he was complaining of back pain going out into the left hip and upper thigh.  Dr. Gregory noted that physical therapy had been helping and that the employee=s symptoms were getting better.  Straight leg raising was positive but there was no neurological deficit.  Given the employee=s bulging discs and foramen narrowing on the left at L4-5 and L5-S1, the doctor diagnosed  disc pathology, but thought it advisable to rule out a hip pathology and recommended a left hip x-ray. Physical therapy was continued for six more weeks in light of the employee=s improvement and the employee was continued on work restrictions.  Dr. Gregory thought the employee might have a possible pars articularis defect and recommended that, if conservative treatment failed, the employee should consider an MRI of the left hip and a neurology consultation along with an EMG. 

 

On February 28, 2002, the employee was seen by Dr. Nadeem Iqbal at Neurological Associates of St. Paul on referral from Dr. Duthoy.  The employee told Dr. Iqbal that he had first injured his back at work in 1990 or 1991 and had colchicine injections following that injury which had helped him for three or four years.  Since then he had had discomfort in his back off and on, with numbness in his middle three toes on the right and pain going down the left leg also.  The employee indicated that, although he was getting better, he still had pain down his left leg.  Dr. Iqbal diagnosed chronic lower back pain.  He noted that the employee=s most recent MRI showed changes on the right side and that there was depressed ankle reflex on the right which suggested a right S1 nerve root involvement, but that the employee had minimal symptoms on the right.  He scheduled the employee for an MRI of the left hip joint and an EMG of his left lower extremity to look for lumbar radiculopathy.   

 

The employee returned to Dr. Gregory on May 8, 2002.  He continued to complain of left leg pain and had not yet had a left hip x-ray, but the MRI scan of his left hip and the EMG of his left leg ordered by Dr. Iqbal had been negative.  A myelogram CT showed a bulging disc at L4-5, worse on the right, which Dr. Gregory noted was Aessentially the wrong side.@  Dr. Gregory recommended continued conservative treatment and speculated that the employee=s pain might be vascular rather than neurological.

 

The employee was seen by Dr. Steven D. Stein of the Minneapolis Clinic of Neurology, on June 14, 2002.  The employee complained of severe back spasms which he had experienced off and on every few months for some time.  He had pain in the low back and left side traveling into the left buttock and down the left hamstring.   Dr. Stein thought that the employee=s symptoms sounded radicular, but noted that the radiographic studies were not Aoverly impressive in that regard.@  He thought that some of the pain might be related to the facet joints and recommended facet block injections. 

 

Shortly thereafter, the employee underwent facet joint injections.  On July 2, 2002, Dr. Stein reported in a letter to the employee=s QRC that the employee=s pain had improved since the first set of facet blocks which suggested that the facet joints played a significant role in the pain.  He recommended a second series of injections, or, in the alternative, that the employee be referred for a chronic pain consultation.  On July 29 the employee saw Dr. Duthoy who recorded that the employee felt better overall and had only minimal left leg pain but did have some right leg pain and low back pain.  He continued the employee=s restrictions, prescribed ibuprofen, and advised the employee to return in three months as needed.  Dr. Stein saw the employee the next day, July 30, 2002.  The employee reported that the left lumbar facet injections had helped but that he now was experiencing more pain on the right side.  Dr. Stein suggested facet injections on the right and deferred consideration of the employee=s work restrictions until after that. 

 

On August 12, 2002, the employee was examined on behalf of the self-insured employer by Dr. Joseph Tambornino.  Dr. Tambornino=s report expressed the opinions that the employee=s diagnosis was shifting low back, buttock and leg pain and symptoms unsubstantiated by consistent objective abnormal findings on physical examination or imaging studies, that the employee=s current symptoms were unrelated to the January 2001 work injury, that the employee required no work restrictions or further medical treatment, and that he was at maximum medical improvement (MMI) and had likely reached that point about 6-12 weeks after the January 2001 work injury.  On August 21, 2002, the self-insured employer served the employee with notice of MMI on the basis of the report of Dr. Tambornino.

 

The employee underwent three-level lumbar facet joint arthrography with therapeutic injections on August 16, 2002, at the Center for Diagnostic Imaging at the direction of Dr. Stein.  The employee reported no pain relief following the injections.  The employee was seen on August 23 by Dr. Duthoy, who continued the employee on restrictions and authorized light lifting. 

 

On August 26, 2002, the employer filed a notice of intention to discontinue temporary total disability benefits on the grounds of a release to work without restrictions, predicated on Dr. Tambornino=s report.  The employee filed an objection to discontinuance but also attempted a return to work in his regular dock worker job on September 4 and 5, 2002.  The employee was unable to complete either day.  On September 5 the employee saw Dr. Nolan, an associate of Dr. Duthoy, and reported that the attempted return to work had resulted in a severe exacerbation of his low back pain with radiation to the buttocks, although not into the legs.  Dr. Nolan prescribed at-home physical therapy and medications and took the employee off work through September 15, 2002.  On September 16, the employee returned to see Dr. Duthoy and reported feeling somewhat better.  Dr. Duthoy authorized the employee to work with restrictions.

 

On September 26, 2002, a compensation judge of the Office of Administrative Hearings served and filed an Order on Discontinuance which denied the employer=s request to discontinue temporary total disability.  The compensation judge found that the employer had failed to establish a basis on which to discontinue benefits.

 

The employee returned to Dr. Stein on October 10, 2002.  He reported that the facet injections in mid August had helped somewhat.  His right leg pain was better and more of the pain was in the low back itself.  Dr. Stein suggested that the employee might benefit from being seen at the Fairview Pain Center for evaluation and recommendations.  In addition, he authorized a structured exercise program requested by the employee to include a personal trainer to supervise his exercise program.  Finally, Dr. Stein recommended a functional capacities evaluation to assist in setting work restrictions. 

 

The employer agreed to the functional capacities evaluation and one session with a personal trainer, but opposed the pain clinic evaluation and the employee did not pursue it.  The functional capacity evaluation was performed from October 22 through 24, 2002.  The employee rated his pain at three on a ten-point scale compared to a recent six or seven associated with his exacerbation from his failed attempt to return to normal work duties in September.

 

As of November 13, 2002, Dr. Stein noted that the employee=s condition had stabilized over time but might still require additional visits as well as cortisone injections for symptomatic relief in the event of flare-up.  He told the employee to return on an as-needed basis. The employee=s QRC, who had accompanied him to his appointment with Dr. Stein, noted on that date that no further treatment was being recommended.  In a health care provider report dated November 21, 2002, Dr. Stein stated that MMI had been reached as of November 21, 2002.  The self-insured employer served this report on the employee on December 4, 2002.

 

The self-insured employer filed a notice of intention to discontinue temporary total disability benefits on November 18, 2002, alleging that maximum medical improvement had been reached effective with the service of Dr. Tambornino=s report on August 21, 2002.  Benefits were paid through 90 days past the date of service.  The employee objected to the discontinuance, resulting in the hearing below.

 

On March 24, 2003, a hearing was held before a compensation judge of the Office of Administrative Hearings to determine the merits of the employer=s proposed discontinuance on the grounds of maximum medical improvement.  In his hearing testimony, the employee agreed that none of his doctors had provided any kind of treatment that had relieved his back and leg pain other than on a short-term basis.  He testified that no treatment was planned for the future.  Following the hearing, the compensation judge found that the employee had reached maximum medical improvement by August 21, 2002.  The employee appeals. 

 

DECISION

 

1. Res Judicata

 

The employee first argues that the previous Order on Discontinuance served and filed on September 26, 2002, is res judicata with respect to the contents of Dr. Tambornino=s report.  Specifically, the employee argues that in that prior order, the compensation judge expressly found that Asubstantial evidence does not support the report of Dr. Tambornino.@  Accordingly, the employee contends, the compensation judge erred in subsequently accepting that physician=s opinion as to the date of maximum medical improvement. 

 

We disagree.    The doctrine of res judicata does not bar litigation of issues not previously litigated.  Westendorf v. Campbell Soup Co., 309 Minn. 550, 550‑51, 243 N.W.2d 157, 158, 28 W.C.D. 460, 460 (1976).  "Principles of res judicata apply in workers= compensation matters in some instances, but they do not bar further proceedings to determine claims not litigated in the prior hearing."  Erickson v. Hulcher Emergency Servs., 50 W.C.D. 133, 140 (W.C.C.A. 1993) (citing Westendorf).  ARes judicata does not apply if the issue at stake was not specifically decided in the prior proceeding@ (quoting 3A. Larson, The Law of Workmen=s Compensation, ' 79.72(f) at 15‑426.272 (100) (1992)).

 

The notice of intention to discontinue filed on August 26, 2002, alleged as grounds that the employee was A[r]eleased to return to work without restriction by Dr. Joseph Tambornino.@ Pursuant to Minn. Stat. ' 176.238, subd. 6(d), the issues to be heard and determined in the administrative conference were specifically limited to those raised by the notice of intention to discontinue.  The issue of MMI was not mentioned in the September 26, 2002, Order on Discontinuance.  Clearly, this prior Order has no res judicata effect on the determination of maximum medical improvement.     

 

Nor does the compensation judge=s prior rejection of Dr. Tambornino=s opinion with respect to the employee=s need for work restrictions prevent adoption of Dr. Tambornino=s view on the question of the date of maximum medical improvement.  A compensation judge is free to select all or any portion of any expert opinion, so long as that opinion has adequate foundation."  Klasen v. American Linen, 52 W.C.D. 284, 292 (W.C.C.A. 1994).  "A compensation judge generally is free to accept a portion of an expert=s opinion while rejecting other portions."  Johnson v. L.S. Black Constr., Inc., slip op. (W.C.C.A. Aug. 18, 1994) (citing City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980) (a factfinder generally "may accept all or only part of any witness= testimony")). 

 

2. Maximum Medical Improvement

 

Maximum medical improvement is "the date after which no further significant . . . lasting improvement to a personal injury can reasonably be anticipated."  Minn. Stat. ' 176.011, subd. 25.  Whether MMI has been reached is a question of fact for the compensation judge to decide.  Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528‑29, 41 W.C.D. 634, 639 (Minn. 1989).  The compensation judge found that the employee had indeed reached MMI as of August 21, 2002, the date alleged by the employer in its notice of intent to discontinue benefits (ANOID@). 

 

The employee has not pointed to any evidence of further significant and lasting improvement in the employee=s condition after August 21, 2002.  Instead, the employee alleges various mistaken facts are present in the employee=s medical history given by Dr. Tambornino in his report and contends that, as a result, the opinions of Dr. Tambornino lacked adequate foundation.  Whether or not some of the statements made in the history were factually inaccurate, it does not appear that those facts were material to Dr. Tambornino=s opinion as to whether the employee had attained MMI.  Further, and more importantly, we note that the compensation judge=s findings and memorandum reveal that she did not base her MMI finding solely or even primarily on the opinion of Dr. Tambornino.  Accordingly, we need not specifically address the employee=s factual objections to Dr. Tambornino=s account of the employee=s history, and focus instead on whether the evidence, taken as a whole, provides substantial support for the compensation judge=s findings.^[1] 

 

The compensation judge noted that, as of August 21, 2002, the date which was at issue due to the allegations of the NOID, no further treatment was recommended other than further epidural injections which provided only temporary symptomatic relief.  The employee himself testified that he had seen some improvement in his symptoms which peaked around the time of the second facet block injection in August 2002 but that afterwards he had not improved further and in fact his symptoms had subsequently gotten a bit worse around the time of the FCE.  He agreed that, other than the facet blocks, none of the treatment he received had been effective in relieving his low back pain, and that even the facet blocks provided only temporary relief after which his back and left leg pain eventually came back. 

 

As the compensation judge=s finding that MMI had been reached as of August 21, 2002, has substantial support in the record, we affirm.