RAYMOND J. HANSON, Employee/Appellant, v. TEAM PERS. SERVS., INC., and MINNESOTA ASSIGNED RISK/BERKLEY RISK ADM=RS CO., Employer-Insurer/Cross-Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 7, 2004

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY - RECOMMENCEMENT; STATUTES CONSTRUED - Minn. Stat. ' 176.101, subd. 1.  If temporary total disability benefits have been discontinued because the employee has been released to return to work without work-injury-related restrictions, and if restrictions are subsequently reimposed prior to 90 days post MMI and prior to payment of 104 weeks of temporary total disability compensation, the employee once again becomes eligible, under authority implied in Minn. Stat. ' 176.101, subd. 1(h), for temporary total disability benefits at the time of the reimposition of restrictions, subject to defenses.

 

PRACTICE & PROCEDURE - REMAND; TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where, prior to 90-days post MMI and prior to receipt of 104 weeks of temporary total disability benefits, benefits had been discontinued because the employee had returned to work without restrictions, and where, upon reimposition of restrictions, the compensation judge had erroneously denied recommencement of benefits under Minn. Stat. ' 176.101, subd. 1(e)(2), based on a finding that the employee was not Aactively employed@ at the time of the reimposition of restrictions, the matter was remanded to the compensation judge for reconsideration and findings as to the employee=s entitlement.

 

APPEALS - LAW OF THE CASE; JURISDICTION - SUBJECT MATTER.  Where the compensation judge had made certain findings as to the employee=s diagnosis, restrictions and credibility during a benefits period not at issue before the judge and already addressed and settled under previous litigation, and where one of those findings was contrary to an unappealed conclusion in the previous litigation, the finding contrary to the previous litigation was reversed, and the other findings regarding that settled period were vacated as outside the judge=s jurisdiction.

 

Affirmed in part, reversed in part, vacated in part, and remanded in part.

 

Determined en banc.

Compensation Judge: Patricia J. Milun

 

Attorneys: Thomas A. Klint, Babcock, Neilson, Mannella, Lafleur & Klint, Anoka, MN, for the Appellant.  Kathleen M. Daly, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Cross-Appellants.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge's denial of temporary total disability benefits under Minn. Stat. ' 176.101, subd. 1(e)(2).  The employer and insurer cross-appeal from certain findings of the judge regarding the employee=s restrictions, diagnosis, and credibility.  We reverse in part and remand in part for reconsideration on the appeal, and we affirm in part, reverse in part, and vacate in part on the cross appeal.

 

BACKGROUND

 

On August 23, 2002, Raymond Hanson sustained a work-related injury to his left shoulder and elbow while employed with Team Personnel Service, Inc., a temporary agency that employs at any one time between three hundred fifty and five hundred people through its five Twin Cities offices.   Mr. Hanson [the employee] was fifty-one years old on the date of his injury and was earning a weekly wage of $360.00.  The employee commenced treatment for his injury at Allina Medical Clinic in Farmington with Dr. Glen Steeves, who diagnosed a shoulder sprain, prescribed medications and home ice therapy, and released the employee to return to work in three days with restrictions against overhead reaching and lifting over ten pounds with his left arm.  Team Personnel Service, Inc. [the employer], admitted liability for the injury and commenced payment of benefits.

 

Dr. Steeves next saw the employee on August 29, 2002, at which time he noted that the employee=s treatment had Ahelped symptoms significantly,@ although the employee=s pain had not resolved completely.  By September 5, 2002, the employee=s pain had still not resolved, but Dr. Steeves reported it to be Aa lot better,@ and he relaxed the employee=s lifting restrictions to nothing over twenty-nine pounds, instructing the employee to continue with ice therapy.  The employee=s symptoms remained essentially unchanged when the employee saw Dr. Steeves on September 12, 2002, and Dr. Steeves injected the shoulder joint with lidocaine and recommended use of anti-inflammatories along with the ice.  Finally, on September 19, 2002, Dr. Steeves noted that the A[s]teroid injection has helped symptoms significantly,@ that A[t]he pain has almost resolved,@ and that the employee was using over-the-counter medications only occasionally.  Moreover, although, on physical examination, adduction across the body was tender and there was some palpable pain on the AC joint and in the biceps tendon, internal and external rotation were normal and impingement signs were absent.  On those findings, the doctor concluded that the employee had reached maximum medical improvement [MMI] with Aan undetermined partial disability,@ and he released the employee to return to work without restrictions, recommending only that he continue to use ice and over-the-counter medications and return to the clinic as needed.  On September 23, 2002, the employer and insurer served Notice of Intention to Discontinue [NOID] Benefits, indicating that the employee had been released to work without restrictions as of September 20, 2002.

 

On the morning of September 26, 2002, the employer contacted the employee with an offer of a job that he would need to get to by noon, but the employee declined the offer on grounds that he would be unable to get to the job on time.  The employee purportedly contacted the employer=s office several times over the course of the next six weeks,^[1] but no work was available.  Meanwhile, the employee=s symptoms continued and increased, and the employee did not ultimately return to work.  Finally, on October 30, 2002, about six weeks after his release by Dr. Steeves to return to work without restrictions, the employee returned to the Allina Medical Clinic, where he was seen by Dr. Ali Esmaeelzadeh.  According to Dr. Esmaeelzadeh=s office notes, the employee reported Athat ever since August when he started the therapies and treatment, his shoulder symptoms have improved, but over the past two weeks they have started to come back.@  While finding on exam a full range of motion in the shoulder, Dr. Esmaeelzadeh diagnosed left shoulder bursitis, prescribed ibuprofen and shoulder exercises, reinstated restrictions against lifting above the shoulder, and referred the employee for physical therapy.

 

The employee continued to maintain contact with the employer=s Farmington office after receiving his reimposed restrictions on October 30, 2002, but no work was available for him within those restrictions.  On November 12, 2002, the employee called the insurer to inform the insurer that he had been placed back on restrictions, but, by letter of that same date, the insurer denied liability for any benefits.  The insurer asserted that it had not received any medical documentation of new restrictions, that, pursuant to Minn. Stat. ' 176.101, subd. 1(h), temporary total disability compensation had been discontinued because the employee had been released to work without any physical restrictions, and that, even if the employee were now subject to new restrictions, benefits would not be recommenced, Aaccording to MN Statute 176.101, subd. 1e(2), which states Temporary Total Disability may not be recommenced if the employee is not actively employed when the employee becomes medically unable to work.@

 

On November 20, 2002, the employee=s symptoms were not much improved, and Dr. Esmaeelzadeh diagnosed left shoulder capsulitis and recommended an MRI scan.^[2]  On November 25, 2002, the employee filed an objection to the NOID served by the employer and insurer on September 23, 2002, alleging that he was entitled to temporary total disability benefits continuing from September 20, 2002.  On December 23, 2002, the employee was seen on referral by orthopedic surgeon Dr. Robert W. Shepley, who, based on physical examination and x-rays that revealed evidence of a subacromial hook, diagnosed left shoulder impingement and ordered an MRI scan.  The scan, conducted on January 15, 2003, was read to reveal in part extensive hypertrophic degenerative changes at the acromioclavicular joint, findings compatible with partial tearing of the rotator cuff, and degeneration or tearing of the anterior glenoid labrum.

 

The matter of the employee=s objection to discontinuance was heard before Compensation Judge Kathleen Behounek on January 16, 2003, by which date the employee had not yet returned to work since the August 23, 2002, date of his work injury and continued to be subject to the work restrictions imposed on October 30, 2002.  The sole issue before Judge Behounek was whether the employer and insurer had had proper grounds to discontinue the employee=s temporary total disability benefits.  On February 5, 2003, subsequent to that hearing but before the judge issued her findings and order, Dr. Shepley performed arthroscopic surgery on the employee=s left shoulder, for debridement of the labrum, subacromial decompression, and distal clavicle excision, under a diagnosis of left shoulder impingement and acromioclavicular degenerative changes.  Finally, on February 14, 2003, Judge Behounek filed her findings and order, in which she concluded that the employer and insurer were entitled to discontinue the employee=s temporary total disability benefits as of the filing date of their NOID, September 23, 2002, based on Dr. Steeves=s September 19, 2002, release of the employee to work without restrictions.  In her memorandum, Judge Behounek explained first that she found Ano medical support for the employee=s contention that his condition warranted work restrictions@ during the period September 19, 2002, through October 30, 2002, and then as follows:

 

The employer and insurer=s grounds for discontinuance ceased as of October 30, 2002, when restrictions were again placed on the employee=s work activities.  However, because the parties did not agree to expand the issues as to entitlement and defenses to temporary total disability benefits, the compensation judge cannot order reinstatement of temporary total disability benefits as of October 30, 2002.

 

There was no appeal from the decision of Judge Behounek.

 

On April 3, 2003, the employee filed a claim petition, alleging entitlement to temporary total disability benefits continuing from October 31, 2002, together with rehabilitation benefits and penalties, consequent to his injury on August 23, 2002.  In their answer to the petition on April 16, 2003, the employer and insurer denied liability for the benefits at issue, contending that the employee was not temporarily totally disabled for the period claimed and was not entitled to the treatment benefits claimed. 

On June 13, 2003, the employee was examined for the employer and insurer by orthopedic surgeon Dr. H. William Park.  In his report on that date, Dr. Park opined that the employee=s August 23, 2002, work injury had been a temporary contusion and strain without any permanent structural component.  Dr. Park also diagnosed degenerative joint disease of the acromioclavicular joint as well as mild impingement on the left shoulder, of a congenital type not related to the work injury.  It was Dr. Park=s opinion that Dr. Steeves had properly released the employee to work without restrictions on September 20, 2002, in light of the lack of objective findings of any structural injury at that time.  Dr. Park concluded that the employee was currently able to work within certain reaching and lifting restrictions unrelated to his work injury and that his surgery on February 5, 2003, had been reasonable and necessary treatment for his impingement problem, which the doctor found also unrelated to the work injury.

 

On July 17, 2003, Dr. Shepley testified by deposition, in part that in his opinion the employee=s August 23, 2002, work injury was a substantial contributing factor in the impingement syndrome for which the employee was eventually treated surgically.  He testified also that in his opinion that work injury was also a substantial contributing factor in the restrictions that he issued to the employee following his surgery.

 

The matter of the employee=s April 3, 2003, claim petition came on for hearing on July 31, 2003, before Compensation Judge Patricia J. Milun.  Stipulations at hearing included the following:

 

5.  The employee is not at maximum medical improvement as of July 31, 2003.

 

6.  The employee had work restrictions from October 30, 2002 through February 4, 2003.  These restrictions include limited use of the left upper extremity.

 

7.  The employee had work restrictions from March 24, 2003 through the date of the hearing, and these restrictions include no use of the left arm above chest level.

 

8.  The employee was off work from February 5, 2003 through March 24, 2003 for a work-related injury that required surgery.

 

9.  The employee=s physical restrictions listed above are all related to his admitted work injury of August 23, 200[2].  He is entitled to 3 percent permanent partial disability pursuant to Minn. Rules 5223.0450, Subp. 2c.

 

Issues at hearing included whether the employee was entitled to temporary total disability benefits continuing from October 30, 2002, and whether the employer and insurer=s failure to reinstate benefits was based on a frivolous defense under Minn. Stat. ' 176.225, subd. 1(a).  In her findings and order filed September 29, 2003, the compensation judge concluded in part the following:  at Finding 4, that A[t]he treating doctor=s opinion that the employee was released to return to work without restrictions was incorrect because that opinion was based on a  misdiagnosis of the employee=s condition@; at Finding 5, that A[t]he correct diagnosis is left shoulder supraspinatus tendonitis with degenerative tear of the anterior glenoid labrum@; at Finding 6, that A[t]he employee needed work restrictions from September 19, 2002 through the date of the present hearing@; and, at Finding 9, that the employee was Acredible when the employee testified that the job offered by the employer on September 26, 2002, was beyond the employee=s physical capability given his injury.@  Notwithstanding these findings, however, the judge denied the employee=s claim for temporary total disability benefits and penalties, based on Minn. Stat. ' 176.101, subd. 1(e)(2), which prohibits recommencement of temporary total disability benefits in cases where the employee=s benefits were discontinued because the employee had been released to work without any physical restrictions caused by the work injury and the employee was not actively employed when he became subject once again to restrictions.  The employee appeals from the judge=s denial of benefits, and the employer and insurer cross-appeal from the judge=s conclusions as to the employee=s restrictions, diagnosis, and credibility at Findings 4, 5, 6, and 9.

 

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 Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

 

Under subdivision 1(d) of Minn. Stat. ' 176.101, an occupationally disabled worker is entitled to temporary total disability compensation Aduring the period of disability subject to the cessation and recommencement conditions in paragraphs (e) to (l).@  Minn. Stat. ' 176.101, subd. 1(d) (1995).  In the present case, the employee=s benefits were discontinued as of September 23, 2002, based on a medical release to work without restrictions.  See Minn. Stat. ' 176.101, subd. 1(h).  See also Kautz v. Setterlin Co., 410 N.W.2d 843, 43 W.C.D. 206 (Minn. 1987).  On October 30, 2002, however, before the employee had reached MMI for his injury and before he had returned to work, the employee=s treating doctor reimposed physical restrictions consequent to the injury.  The employee therefore sought recommencement of temporary total disability benefits continuing from October 30, 2002.  The employer and insurer denied the employee=s claim, asserting that, because the employee was not Aactively employed@ as of October 30, 2002, when he became medically unable to work, benefits could not be recommenced pursuant to Minn. Stat. ' 176.101, subd. 1(e)(2).  The compensation judge, evidently basing her decision on what she understood to be a literal interpretation of subdivision 1(e)(2), denied the employee=s claim.  In her memorandum, the judge explained as follows:

 

In hindsight, the employee should not have been released to return to work without restrictions on September 20, 2002.

A literal reading of Minn. Stat. ' 176.101, subd. 1(e)(2), prohibits the recommencement of benefits even though the treating doctor changed his opinion.  While this leads to an absurd result in this case, interpreting the statute in a manner that is consistent with the spirit of the law but contrary to the literal reading should be done by the Workers= Compensation Court of Appeals.

 

The employee contends that the compensation judge committed a factual error in concluding that the employee was not Aactively employed@ at the time that his restrictions were restored, in that he was then still employed by the employer, and committed an error of law in even applying Minn. Stat. ' 176.101, subd. 1(e)(2), to the facts of this case, in that that provision applies only to injured workers who have reached MMI.  We agree that Minn. Stat. ' 176.101, subd. 1(e)(2), is not properly applicable to preclude benefits where an employee has not reached MMI with regard to his work injury.

 

Minn. Stat. ' 176.101, subd. 1(e)(2) reads in its entirety as follows:

 

(e)  Temporary total disability compensation shall cease when the employee returns to work. Except as otherwise provided in section 176.102, subdivision 11, temporary total disability compensation may only be recommenced following cessation under this paragraph, paragraph (h), or paragraph (j) prior to payment of 104 weeks of temporary total disability compensation and only as follows:

 

(2) if temporary total disability compensation ceased because the employee returned to work or ceased under paragraph (h) or (j), it may be recommenced if the employee is medically unable to continue at a job due to the injury.  Where the employee is medically unable to continue working due to the injury, temporary total disability compensation may continue until any of the cessation events in paragraphs (e) to (l) occurs following recommencement.  If an employee who has not yet received temporary total disability compensation becomes medically unable to continue working due to the injury after reaching maximum medical improvement, temporary total disability compensation shall commence and shall continue until any of the events in paragraphs (e) to (l) occurs following commencement.  For purposes of commencement or recommencement under this clause only, a new period of maximum medical improvement under paragraph (j) begins when the employee becomes medically unable to continue working due to the injury.  Temporary total disability compensation may not be recommenced under this clause and a new period of maximum medical improvement does not begin if the employee is not actively employed when the employee becomes medically unable to work.  All periods of initial and recommenced temporary total disability compensation are included in the 104-week limitation specified in paragraph (k).

 

Minn. Stat. ' 176.101, subd. 1(e)(2).  By its terms, subdivision 1(e)(2) applies to commencement and recommencement of temporary total disability benefits after the employee has reached MMI.  The statute=s reference to employees who are medically unable to continue at a job due to their injury contemplates a renewed eligibility for temporary total disability benefits despite the employees= having previously reached MMI from the initial injury.  See Sabby v. Copason, Inc., 462 N.W.2d 603, 43 W.C.D. 509 (Minn. 1990).  Similarly, that portion of the statute that restricts recommencement and a new period of MMI for employees who are not actively employed when they become medically unable to work also refers only to employees who have previously reached MMI.  In this case, because the employee has yet to reach MMI with regard to his injury, and because the medically-unable-to-continue concept envisions a new period of MMI, we see no basis for precluding recommencement of temporary total disability benefits under Minn. Stat. ' 176.101, subd. 1(e)(2).

 

In this case, the employee=s benefits were discontinued under Minn. Stat. ' 176.101, subd. 1(h), which is essentially a codification of the holding in Kautz, that benefits cease when an employee is released to return to work without restrictions and without any residual disability.  The legislature did not provide specific recommencement language to cover circumstances where benefits have ceased for that reason and then the employee subsequently becomes once again physically restricted by his work injury.  In the absence of such language, we interpret subdivision 1(h) of the statute as implying its own recommencement provision.  In other words, if an employee has been denied temporary total disability benefits because he is released to return to work without work-injury-related restrictions, and if restrictions are subsequently reimposed, the employee once again becomes eligible for temporary total disability benefits at the time of the reimposition of restrictions, so long as restrictions are reimposed prior to 90 days post MMI and prior to payment of 104 weeks of temporary total disability compensation.  This interpretation of the statute is consistent not only with prior case law^[3] but also with the statute=s other recommencement conditions prior to 90 days after the employee reaches MMI and prior to payment of 104 weeks of temporary total disability compensation.^[4]  In the present case, the employee became eligible again for temporary total disability benefits on October 30, 2002, subject to defenses, and entitled to temporary total disability benefits from February 5, 2003, through March 24, 2003, the period during which, by stipulation of the parties, the employee was medically disabled from all work consequent to his surgery.  On this construction of the statute, we reverse the compensation judge=s denial of temporary total disability benefits during the period of the employee=s actual disabilityBFebruary 5, 2003, through March 24, 2003, and we remand the matter to the judge for findings on the issue of the employee=s entitlement to benefits for the period during which he was released to work with restrictionsBOctober 30, 2002, to February 5, 2003, and March 25, 2003, through the date of the hearing.

 

On cross appeal from Findings 4, 5, 6, and 9 of the compensation judge, the employer and insurer contend that Athe compensation judge was without jurisdiction to make findings as [to] the employee=s medical diagnosis, work restrictions, job search, or credibility from September 19, 2002 through October 30, 2002,@ in that matters during that time period were not before Judge Milun and were for the most part finally decided by Judge Behounek=s February 14, 2003, decision, from which there was no appeal.  In the event that this cross appeal might have some future relevance with regard to the employee=s claim for benefits subsequent to October 30, 2002, we will address these issues as raised.

 

At Finding 4, Compensation Judge Milun found that A[t]he treating doctor=s opinion that the employee was released to return to work without restrictions was incorrect because that opinion was based on a misdiagnosis of the employee=s condition.@  As contended by the employer and insurer, the accuracy of Dr. Steeves=s diagnosis was not at issue before Judge Milun, in that it was Drs. Esmaeelzadeh and Shepley, and not Dr. Steeves, who issued the diagnoses and restrictions that pertain to the benefits periods that are here at issue, those subsequent to October 30, 2002.  Nor was the medical propriety of Dr. Steeves=s decision to release the employee to work without restrictions at issue before Judge Milun.  However valid or invalid might have been Dr. Steeves=s pre-October 30, 2002, diagnosis, neither the doctor=s diagnosis nor the doctor=s release of the employee to work without restrictions on September 19, 2002, was at issue before Judge Milun, and we vacate Judge Milun=s Finding 4 pertaining thereto.

 

At Finding 5, Judge Milun found that the employee=s current Adiagnosis is left shoulder supraspinatus tendonitis with degenerative tear of the anterior glenoid labrum@ and that A[t]he employee underwent a left shoulder arthroscopy and arthroscopic decompression by Dr. Shepley on February 5, 2003.@  The judge=s finding of this diagnosis is supported by the radiological report on the employee=s January 15, 2003, MRI scan, and the medical record clearly demonstrates that the referenced surgery was performed by Dr. Shepley on the date indicated.  The compensation judge was therefore entitled to accept this diagnosis and the fact of this surgery, see Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985), and we affirm as reasonable the judge=s conclusions in Finding 5.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

At Finding 6, Judge Milun found that A[t]he employee needed work restrictions from September 19, 2002 through the date of the present hearing.@  The necessity of restrictions during the period from September 19, 2002, through October 30, 2002, was not at issue before the judge, and, in fact, the judge=s finding is contrary to the finding of Judge Behounek for that period, which is the law of the case.  For the period from October 30, 2002, through the date of the hearing, Judge Milun=s finding is supported by the parties= own stipulation on the issue.  We therefore affirm that portion of Finding 6 that pertains to the period commencing October 30, 2002.  However, because Judge Milun had no jurisdiction to make that portion of her finding pertaining to the period from September 19, 2002, through October 30, 2002, which essentially contradicts the settled law of the case, we reverse Finding 6 to the extent that it addresses the employee=s restrictions prior to October 30, 2002.

 

At Finding 9, Judge Milun found Athe employee credible when the employee testified that the job offered by the employer on September 26, 2002, was beyond the employee=s physical capability given his injury.@  The employee did not testify to this effect.  The employee testified that he declined to accept the job offered by the employer on that date because he was unable to get to the work site by noon as would have been required in order to accept the job.  Moreover, again, this finding has no relevance to the benefits period here at issue.  Therefore we vacate Finding 9 along with Finding 4.

 

In summary, we reverse the compensation judge=s denial of benefits for the period of the employee=s total disability from work post surgery, February 5, 2003, through March 24, 2003; we remand for findings and order on the employee=s entitlement to benefits for the periods October 30, 2002, to February 5, 2003, and March 25, 2003, through the date of the hearing; we vacate the compensation judge=s Findings 4 and 9 as beyond the judge=s jurisdiction; we reverse as contrary to the law of the case that portion of the judge=s Finding 6 that pertains to the employee=s need for restrictions prior to October 30, 2002; and we affirm the judge=s Finding 5 and that portion of the judge=s Finding 6 that pertains to the employee=s need for restrictions subsequent to October 30, 2002.