Peterson v. Camilia Rose Convalescent Ctr.

TAMERA M. PETERSON, Employee/Appellant, v. CAMILIA ROSE CONVALESCENT CTR. n/k/a/ WILLOWS CONVALESCENT CTR., and LUMBERMEN=S UNDERWRITING ALLIANCE, Employer-Insurer, and ORTHOPEDIC MED. & SURGERY, LTD. and BLUE CROSS and BLUE SHIELD of MINN. & BLUE PLUS, Intervenors.

PRACTICE & PROCEDURE - PROPOSED FINDINGS & ORDER. Under the circumstances of this case, the compensation judge committed reversible error by adopting the employer and insurer=s proposed findings, order and memorandum verbatim.

Attorneys: Howard S. Carp, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Appellant. Timothy P. Jung, Cronan, Pearson, Quinlivan, Minneapolis, MN, for the Respondents.

The employee appeals from the compensation judge=s Findings and Order on Remand, asserting the judge=s verbatim adoption of a proposal findings, order and memorandum was error. We vacate the Findings and Order on Remand and remand the case to the Office of Administrative Hearings for further proceedings.

Tamera M. Peterson, the employee, worked for twelve years as a certified nursing assistant (CNA) for the employer, Camilia Rose Convalescent Center. In the spring and summer of 1990, the employee noticed a gradual onset of neck and shoulder symptoms associated with her work activities. (5/5/93 F&O, finding 7). In late August and early September, 1990, the employee sought treatment from James Brandt, D.C., and Dr. Peter Holmberg for neck and right arm complaints. The diagnosis was a possible rotator cuff strain.

The employee was then referred to Dr. Richard Bertie who provided work restrictions and prescribed physical therapy. The employer accommodated the employee=s restrictions, transferring the employee to a medical receptionist/secretary position. On February 13, 1991, Dr. Bertie noted the employee continued to experience pain in the right arm and into her shoulder. He referred her for an EMG of the right upper extremity, which was within normal limits.

The employee began treating with Dr. Steven Lebow, a neurologist, on March 1, 1991. Dr. Lebow noted bilateral trapezius spasm with loss of lateral flexion in the neck bilaterally. He diagnosed a cervical strain/sprain with radiating pain into the right upper extremity, and recommended an aggressive conditioning program. The employee continued to treat with Dr. Lebow through April 1992. The doctor eventually diagnosed a chronic musculoligamentous condition, noting persistent symptoms and pain in the neck and right shoulder and arm. On January 28, 1992, Dr. Lebow concluded the employee had reached maximum medical improvement, and imposed permanent work restrictions precluding the employee from returning to work as a CNA. (5/5/93 F&O, finding 11).

In July 1992, the employee returned to Dr. Lebow with complaints of increased neck pain with right shoulder and arm pain. Concerned about possible pathology in the shoulder, the doctor requested an MRI scan. No significant abnormalities were noted in the right shoulder. By January 1993, Dr. Lebow indicated the employee had returned to her pre-exacerbation baseline.

The employee had filed a Claim Petition on May 23, 1991, alleging a personal injury to the Aback@, seeking payment of medical expenses and a change of physician to Dr. Lebow.^[1] The employee later added claims for permanent partial disability benefits, approval for a health club membership and rehabilitation services. The employee=s consolidated claims were heard on March 3, 1993, by Compensation Judge Nancy Olson. In a decision issued May 5, 1993, Judge Olson found the employee=s Aneck complaints@ were due to a Gillette-type injury culminating on September 4, 1990, and awarded benefits to the employee.

The employee sought no treatment from 1993 through the summer of 2000. In July 2000, the employee complained of increasing right arm pain during a general physical examination by a family physician in Manitowoc, Wisconsin. She was then seen by Dr. Philip Haley, an orthopedist, on August 7, 2000, complaining of right upper extremity pain. Dr. Haley concluded her problems were coming from the shoulder, rather than the arm or cervical spine, and referred the employee for an MRI scan. The scan showed degenerative changes in the acromioclavicular and glenohumeral joints. The employee then returned to Dr. Lebow on November 14, 2000, complaining of neck and shoulder pain. On exam, the doctor noted bilateral trapezius spasm, poor lateral mobility of the neck and poor rotation in the shoulders. He noted the employee had a musculoligamentous injury from 1990, with recent progression likely representing degenerative arthritis in the shoulders superimposed on the prior injury. Dr. Lebow referred the employee to Dr. Jay Johnson, an orthopedist specializing in shoulder conditions. Dr. Johnson examined the employee on January 17, 2001, noting significant decreased rotation of the right shoulder and expressing concerns about a possible frozen shoulder.

The employee was examined by Dr. Jack Drogt, an orthopedist, at the request of the employer and insurer on May 22, 2001. Dr. Drogt diagnosed diffuse musculoligamentous findings with chronic neck and shoulder pain. He concluded, however, given the seven-year hiatus in care, that the employee=s current right shoulder problems were not related to her 1990 work injury, and were, more likely than not, age specific.

The employee filed a new Claim Petition on January 29, 2001, seeking temporary total disability benefits and payment of medical bills. The temporary total claim was dropped prior to the hearing, at which time the issues were whether medical expenses incurred by the employee for the treatment of neck and Ashoulder pain@ were causally related to her September 4, 1990, Gillette injury, whether the employee was a qualified employee for the purpose of receiving rehabilitation benefits, and payment for rehabilitation services. The case was tried by a compensation judge at the Office of Administrative Hearings on April 2, 2002. In a Findings and Order issued June 25, 2002, the compensation judge concluded the May 5, 1993, findings and order established solely a neck injury in 1990, and denied the employee=s claim for benefits related to her shoulder symptoms.

The employee appealed the compensation judge=s decision to the Workers= Compensation Court of Appeals. In a decision filed February 18, 2003, this court vacated the decision of the compensation judge and remanded the case for redetermination on the existing record. On remand, by order dated June 27, 2003, the compensation judge requested a proposed decision from each party. In her order, the compensation judge stated:

AThe proposed decision must conform to this part and be served upon the other parties. It must be in a form which would allow the compensation judge to sign and issue the decision if it is acceptable.

The employee=s and the employer and insurer=s proposed findings and orders were filed on July 21, 2003. The compensation judge issued a findings and order on July 29, 2003, which was identical, in all respects, including the memorandum, to the employer and insurer=s proposed decision. In the Findings and Order on Remand, the compensation judge again found the claimed medical treatment was not causally related to the employee=s September 4, 1990, work injury. The judge further found that because the medical treatment was unrelated to the personal injury, the employee was not in need of the services of a qualified rehabilitation consultant to perform medical management. The employee appeals.

The employee argues the compensation judge committed reversible error in adopting the employer and insurer=s proposed findings, order and memorandum verbatim. We agree.

In Anderson v. The Salvation Army, slip op. (W.C.C.A. June 27, 2003), this court held the submission of proposed findings does not change the compensation judge=s obligation to review and evaluate the evidence. As a general rule, this court has affirmed a compensation judge=s decision even when the judge has adopted a proposed findings and order as his or her own. In virtually every instance, however, some modifications were made to the proposed findings and order before the judge signed it, and the findings and order included a memorandum written by the judge explaining the judge=s decision. See Roth v. USX Corp., slip op. (W.C.C.A. Oct. 21, 2003) (and cases cited therein).

In this case, the compensation judge asked the parties to submit a proposed decision, including a memorandum, not just proposed findings of fact. As in Roth, the compensation judge simply signed the employer=s proposed findings and order, verbatim. No changes were made. AThe judge=s verbatim adoption of a proposed findings and order here, without any memorandum, makes it impossible for this court to determine whether the judge independently determined all of the contested issues of fact and law submitted to him.@ Roth at 4-5. That is particularly true in this case where the memorandum was also adopted verbatim from the employer and insurer=s proposed decision.

We conclude, under the circumstances of this case, the compensation judge committed reversible error by adopting the employer and insurer=s proposed findings, order and memorandum. As the compensation judge is no longer with the Office of Administrative Hearings, we refer the case back to the Office of Administrative Hearings for assignment to a new judge for hearing.

^[1] The employee also claimed benefits based on an admitted personal injury to the low back on August 14, 1979, with the same employer, then insured by St. Paul Fire and Marine.