Bieniek v. Griggs-Cooper, Inc.

ROBERT BIENIEK, Employee, v. GRIGGS-COOPER, INC., and RELIANCE/GENERAL CAS., Employer-Insurer/Appellants, and STANDARD TRUCK & AUTO, and AMERICAN COMP./RTW, Employer-Insurer.

PRACTICE & PROCEDURE - TEMPORARY ORDER. Where, subsequent to the issuance of a temporary order concerning payment of proposed lumbar fusion surgery, the petitioning employer and insurer received medical evidence raising issues as to both causation and reasonableness and necessity, it was appropriate to vacate the temporary order.

Attorneys: Patrick T. Grove, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, MN, for the Appellants. David R. Vail, Soderberg & Vail, L.L.C., Minneapolis, MN, for the Respondent/Employee. Lisa Kinney, Cousineau, McGuire, Anderson, Ironwood, MI, for the Respondent/Employer-Insurer.

Griggs-Cooper, Inc., and its insurer ask this court to vacate a temporary order issued on March 26, 2003, based on information obtained subsequent to the issuance of the order. We vacate the temporary order insofar as it pertains to liability for payment of proposed lumbar fusion surgery.

The relevant facts may be briefly stated.^[1] The most recent litigation relevant to the issue on appeal began with a medical request filed by the employee in November of 2002, seeking payment of certain specific medical expenses incurred in treatment of the employee=s low back condition. The employers named in the medical request were Griggs-Cooper, Inc., the employee=s employer on the date of a work-related low back injury in 1988, and Standard Truck & Auto, the employee=s employer on the date of a work-related low back injury in 1997. In a February 4, 2003, decision issued following a conference held pursuant to Minn. Stat. ' 176.106, a compensation judge determined as follows:

Based upon a preponderance of the evidence, it is determined that the employee=s treatment from March 18, 2002 on was for a flare-up of the long term permanent work injuries to the employee=s low back for which he has been paid 13% permanent partial disability. No doctor to date has opined that the employee=s symptoms and need for treatment from March 18, 2002 on are unrelated to his 1988 and 1997 work injuries.

In early March of 2003, Griggs-Cooper and its insurer filed a petition for temporary order under Minn. Stat. ' 176.191, concerning the medical expenses covered by the compensation judge=s February 4, 2003, administrative decision, agreeing to pay those expenses pending a later determination of liability as between Griggs-Cooper and Standard Truck. A temporary order was eventually issued on March 25, 2003. In the meantime, on March 19, 2003, Griggs-Cooper filed an amended petition for a temporary order, again concerning the specific expenses covered by the compensation judge=s February 4, 2003, decision but also dealing with proposed fusion surgery. The provision in the petition pertaining to the potential surgery reads as follows:

Additionally, the petitioning insurer is willing to voluntarily pay for the proposed three level fusion pursuant to the IME report dated February 7, 2003, of Dr. Davis. As the employee has never made a claim for a three level fusion the petitioning insurer is willing to pick the three level fusion up if it is recommended by the employee=s treating surgeon. Attached hereto as Exhibit C is a true and correct copy of the February 7, 2003, IME report of Dr. Davis.

On March 26, 2003, a compensation judge issued an Aamended@ temporary order, providing in part as follows:

NOW, THEREFORE, IT IS HEREBY ORDERED that Griggs-Cooper, Inc. and General Casualty having consented to payment of benefits pursuant to Minn. Stat. ' 176.191, shall pay the outstanding medical benefits as addressed in the employee=s medical request, and shall voluntarily pay for the proposed three level fusion as recommended by Dr. Lonstein so long as his disability shall warrant within the meaning and limitations of the Minnesota Workers= Compensation Act.

On May 7, 2003, Griggs-Cooper and its insurer filed a petition at the Office of Administrative Hearings, seeking to vacate the amended temporary order issued on March 26, 2003. In the petition, Griggs-Cooper alleged that circumstances had changed since the issuance of the amended temporary order, making the order as to their liability to pay for fusion surgery inappropriate. Attached to the petition were treatment notes from Dr. John Lonstein, the employee=s treating physician, who did in fact recommend a three-level fusion. However, a February 25, 2003, chart note from Dr. Lonstein, made less than a month before Griggs-Cooper=s petition for an amended temporary order was filed, reads as follows:

I spoke with David Vail, attorney for Robert. We discussed the relationship of the recent injury and his original to his condition. He had a degenerative disc with disc herniation in 1988 with a recurrent disc removal and on recent evaluation has three level disease. I cannot state that the original injury is causation of this three level disease. This was explained to Mr. Vail.

Also attached to Griggs-Cooper=s petition was an April 1, 2003, report of Dr. Loren Vorlicky, who had evaluated the employee on behalf of Standard Truck and recommended against the proposed fusion, and a June 10, 2002, chart note from Dr. P. Thienprasit, the employee=s previous treating surgeon, who indicated that a three-level fusion would Anot be a good idea.@ Griggs-Cooper also indicated in their petition that they had paid the specific medical bills listed in the employee=s medical request and that they were not seeking to vacate the original March 25, 2003, temporary order covering those expenses.

A hearing on Griggs-Cooper=s petition was held before a compensation judge on October 20, 2003. Counsel for the employee and Griggs-Cooper apparently appeared at the hearing, but there is no transcript of the proceedings. On December 8, 2003, the compensation judge issued an AOrder Denying Motion to Vacate.@ Griggs-Cooper and its insurer appeal.

In denying Griggs-Cooper=s request to vacate the amended temporary order concerning the proposed fusion surgery, the compensation judge wrote as follows:

The fact that Dr. Lonstein did not provide a causation opinion is irrelevant. The Petition for Amended Temporary Order was predicated merely upon Dr. Lonstein recommending the three level fusion, which has [been] done. In addition, Dr. Thienprasit=s opinion regarding surgery was known, and noted by Dr. Davis in his report, prior to the Petition for Amended Temporary Order. Lastly, Dr. Vorlicky, while not recommending the proposed three level fusion, has not opined that the surgery would be unreasonable or unnecessary. Thus, a preponderance of the evidence submitted does not establish that the proposed three level fusion would not be compensable, and does not rise to the level of a substantial change in condition which would justify vacating the admitted Temporary Order.

The judge also questioned whether he even had the authority to grant the requested relief, suggesting that jurisdiction lay instead with this court, pursuant to Minn. Stat. ' 176.461. Whatever the merits of the jurisdiction question,^[2] we conclude that the amended temporary order should not be construed or applied to require Griggs-Cooper to pay for the proposed surgery.

We note initially that the language of the amended temporary order is ambiguous as to the exact nature of Griggs-Cooper=s obligation, in that it requires Griggs-Cooper to Apay for the proposed three level fusion as recommended by Dr. Lonstein so long as [the employee=s] disability shall warrant within the meaning and limitations of the Minnesota Workers= Compensation Act.@ (Emphasis added). Arguably, the emphasized language assumes either continued agreement by Griggs-Cooper to pay or an order by a compensation judge establishing liability for the proposed surgery; otherwise, the employee=s work-related disability would not Awarrant@ the surgery under the Workers= Compensation Act. Moreover, as we observed in Keller v. McQuay International,

The temporary order provisions of Minn. Stat. ' 176.191, subd. 1, are intended to ensure that payment of benefits to an employee who is clearly entitled to them is not delayed by a dispute between the employers and/or insurers regarding their responsibility for payment of the benefits admittedly due. See Lease v. Pemtom, Inc., 305 Minn. 6, 232 N.W.2d 424, 28 W.C.D. 11 (1975).

Keller, 55 W.C.D. 613, 616-17 (W.C.C.A. 1996). Given the conflicting evidence in this matter regarding both causation and reasonableness and necessity, it cannot be said that benefits are unquestionably due, and requiring the employers and insurers to pay under these circumstances would leave them with no remedy, by credit or otherwise, should the surgery ultimately be found to be noncompensable.

In opposition to Griggs-Cooper=s petition, the employee cites to medical evidence supporting a finding of compensability, complains about past practices of the employers and insurers concerning payment of benefits, and emphasizes that Griggs-Cooper acknowledged, in their petition for a temporary order, that there was Ano serious dispute concerning the compensability of the employee=s claim for medical benefits.@ However, the fact that the employee might ultimately prevail on a claim for surgery, after a hearing on the merits, is essentially irrelevant to the issue of whether Griggs-Cooper should be required to pay for the procedure now, prior to such a hearing, given, as previously noted, that Griggs-Cooper has no way to recoup their payment. As to Griggs-Cooper=s prior agreement that Ano serious dispute@ existed as to compensability, we would observe that the document at issue was a petition for a temporary order, not a stipulation for settlement or award on stipulation. That is, Griggs-Copper=s agreement was not the result of any compromise by the parties or consideration given by the employee. Finally, we do not see how the history of dealings between the parties is relevant to the question of whether an employer and insurer should be required to pay for what may ultimately be determined to be a medical procedure that is not causally related to the employee=s work injury.

The employee contends that A[t]his litigation cannot go on indefinitely,@ arguing that A[i]t is certainly not >unfair= to hold the defense to their agreement to pay the outstanding bills, particularly when their own adverse agrees on causation.@ However, the issue here is not liability for the medical expenses listed in the employee=s medical request, which have been paid,^[3] but liability for fusion surgery, which was not the subject of any formal claim by the employee. It may well be that Griggs-Cooper should have investigated the issue more thoroughly before preparing and filing the amended petition for a temporary order covering the fusion surgery proposed by the employee=s treating physician. At the same time, to hold Griggs-Cooper to the terms of the order under these circumstances would discourage employers and insurers from requesting temporary orders, undercutting the clear intent of Minn. Stat. ' 176.191. We therefore conclude that, to the extent that the amended temporary order issued on March 26, 2003, can be read to require Griggs-Cooper to pay for fusion surgery in the absence of further proceedings or further agreement of the parties, that order is vacated. The employee may of course file a claim petition or medical request for approval of the procedure, and our decision here should not be taken as expressing any opinion as to the merits of a future claim.

^[1] There is little or no formal record in the present case, because there have been no formal evidentiary hearings directly relevant to the issue before us. The pertinent facts contained in this decision have been taken from certain pleadings and orders and from undisputed information in the briefs. The parties are reminded to submit paper copies of all relevant imaged documentation at the hearing level, in part so this court will have a record of what was considered below. See Beckwith v. Sun Country Airlines, 63 W.C.D. 511 (W.C.C.A. 2003). In cases involving imaged files, references to Athe judgment roll@ are meaningless. Id. at 516.

^[2] See, e.g., Barnes v. Mentor Corp., slip op. (W.C.C.A. Aug. 20, 1984) (the compensation judge lacked jurisdiction to consider issues relating to the temporary order 30 days after the order was filed, and the petition to vacate was properly filed with the Workers= Compensation Court of Appeals; Zeipelt v. Architectural Sales of MN, 41 W.C.D. 1080 (W.C.C.A. 1989) (suggesting that a compensation judge could vacate a temporary order if the petition to vacate were filed within 30 days from the date of the temporary order).

^[3] According to Griggs-Cooper.