Twa by Twa v. Lund Boat Co.

PAUL R. TWA, Employee, by KERRY L. TWA, Petitioner/Appellant, v. LUND BOAT CO. and AIG, adm=d by GALLAGHER BASSETT SERVS., INC., Employer.

PRACTICE & PROCEDURE - DEPOSITIONS. The compensation judge did not abuse his discretion in denying the employee=s request to depose one of his treating physicians.

CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee=s work injury was merely temporary and did not contribute to the employee=s disability during the period in question.

Attorneys: David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Appellant. Mary Kohl, Attorney at Law, Minneapolis, MN, for the Respondents.

The employee appeals from the compensation judge=s denial of wage loss and medical benefits on causation grounds and also argues that the judge erred in denying the employee=s prehearing request to depose a treating physician. We affirm.

The employee first injured his right upper extremity in the early 1980=s, at age 17, when his arm went through a glass window. He sustained a V-shaped laceration to his right forearm and apparently ruptured the extensor carpi radialis tendon. Subsequently, on September 4, 1991, the employee injured his right wrist while chipping asphalt in a job for an employer not involved in the current proceedings. He received extensive treatment for this injury from several providers and was off work for more than two years. Dr. Mark Holm, who conducted independent medical examinations in 1992 and 1993, indicated that the employee had a non-work related ganglion cyst on the volar side of the right wrist and a work-related chronic sprain on the ulnar side of the right wrist, the latter of which was causing persistent symptoms. In his reports, Dr. Holm recommended permanent work restrictions and indicated that the employee=s wrist condition would be prone to aggravations. Following a hearing on November 3, 1993, a compensation judge determined in part that the employee was unable to return to his preinjury job as a result of the 1991 work injury. The employee testified that he ultimately settled his claims regarding this injury.

In November of 1997, the employee sustained a gunshot wound to his right forearm in a hunting accident. Treatment included stitches and medication, and the employee was off work for nearly two months. Subsequent treatment records contain notations concerning continuing pain and numbness, which were worse while the employee was using a chainsaw in his job at the time.

The employee began working for Lund Boat Company [the employer], a boat manufacturer, in January of 2001. On March 27, 2002, he sustained an admitted right wrist injury at work while helping another worker carry a Afreeboard,@ a component of a boat. For this particular boat model, the freeboard was about 17 feet long and weighed just under 29 pounds. The employee testified that the injury occurred when he dropped his end of the freeboard, which then fell on his wrist. The employee=s coworker has no recollection of the incident per se but remembers the employee pointing to a red spot or scrape on his wrist and saying he had injured it. In any event, the employee was seen by the company nurse, who applied ice and provided a band for support. The employee then finished his shift.

The employee sought treatment for his right wrist on April 2, 2002, from Dr. Gary Robinson, who took the employee off work for 48 hours and then allowed him to work with restrictions. The employee was, however, allowed to stay off work until April 10, 2002, when he saw Dr. Adam Thorp, an orthopedist, who diagnosed a contusion and restricted the employee to one-handed work. The employee was also seen on several occasions by Ardis McFarlane, a physicians= assistant for Dr. Jon Wigert, and several other medical providers, including Dr. P.A. Dale. Diagnostic tests included several x-rays, which were negative for fracture; a vascular study performed in mid June of 2002, which showed a hematoma; and an EMG, performed on June 24, 2002, which was read as normal. An August 28, 2002, MRI scan disclosed a multilobulated ganglion cyst, Alocalized tendinopathy and high grade partial-thickness versus full-thickness rupture involving the extensor carpi ulnaris tendon,@ localized chronic-appearing tenosynovitis involving the extensor carpi radialis tendon sheath, and degeneration involving the ulnar surface of the triangular fibrocartilage, without evidence of full thickness tearing. Symptoms noted in the employee=s medical records include pain, redness, and swelling; treatment for these symptoms included medication and two courses of physical therapy.

The employee was terminated from his job with the employer on April 22, 2002, less than a month after his work injury. Conflicting evidence was offered as to the circumstances leading up to the termination. It appears that the discharge may have resulted from confusion over whether and when the employee was medically authorized to be off work. In any event, the employer=s rationale for firing the employee was his violation of the employer=s no call/no show policy.

Litigation was commenced concerning the employee=s entitlement to temporary total disability, rehabilitation, and certain medical expense benefits. In an order issued on August 12, 2002, the employer and insurance were allowed to discontinue temporary total disability benefits effective August 7, 2002. The employee objected to the discontinuance and also served and filed a motion for leave to take the oral testimony of Dr. Robinson. The employer and insurance opposed the motion, and, by order issued September 26, 2002, the motion was denied.

The matter came on for hearing on November 27, 2002, for resolution of the employee=s claim for temporary total disability benefits from and after August 7, 2002, rehabilitation services, and certain treatment expenses. Underlying issues included whether the work injury was temporary or permanent and whether the employee had been discharged for misconduct. Evidence included the employee=s medical records and the report of Dr. Paul Yellin, the employer and insurer=s independent examiner. Witnesses at the hearing consisted of the employee; Chad Plautz, who was carrying the freeboard with the employee at the time of the March 2002 work injury; and two representatives of the employer.

In a decision issued on March 6, 2003, the compensation judge concluded in part that the March 27, 2002, incident resulted in, Aat most,@ a Acontusion and a temporary aggravation of the preexisting, chronic wrist sprain.@ With the exception of certain medical care rendered shortly after the work injury, the employee=s claims were denied. The employee appeals.^[1]

STANDARD OF REVIEW

On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

DECISION

1. Evidentiary Ruling

The employee argues that the compensation judge erred in denying his request to take the deposition testimony of Dr. Gary Robinson. We are not convinced.

Minn. Stat. ' 176.155, subd. 5, reads in relevant part as follows:

Subd. 5. Testimony of health care provider. Any physician or other health care provider designated by the commissioner or compensation judge, or whose services are furnished or paid for by the employer, or who treats, examines, or is present at any examination, of an injured employee, may be required to testify as to any knowledge acquired by the physician or health care provider in the course of the treatment or examination relative to the injury or disability resulting from the injury only in cases involving occupational disease, cardiopulmonary injuries or diseases, injuries resulting from cumulative trauma, issues of apportionment of liability, and mental disorders, or upon an order of a compensation judge. In all other cases all evidence related to health care must be submitted by written report as prescribed by the chief administrative law judge.

We think that the compensation judge correctly ruled that none of the criteria specified in the statute were satisfied here. Contrary to the employee=s contention, the issue in this case was not apportionment but causation.^[2] Moreover, the employee gave no specific indication in his motion papers as to why he wanted to depose Dr. Robinson,^[3] and he never raised the issue of the deposition during the eventual hearing before the compensation judge. As such, no offer of proof was made to preserve the issue for appeal. Furthermore, the employee had nearly two months between the order denying the deposition and the hearing date to obtain any necessary written clarification from Dr. Robinson about causation or any other issues. Even now, on appeal, the employee has not explained exactly what evidence he had hoped to obtain, through the deposition, that was not otherwise already part of the hearing record.

We do not intend to suggest that it should be difficult for an employee to obtain permission to depose a treating physician, especially when the deposition will not delay pending litigation. At the same time, however, rulings on issues such as this one are generally within the sound discretion of the compensation judge. See, e.g., Curry v. Heartland Samplers, slip op. (W.C.C.A. March 4, 1997)(compensation judges are given wide latitude in evidentiary rulings and issues concerning discovery). Because, given all the circumstances here, we find no abuse of discretion, we affirm the compensation judge=s order denying the employee=s motion to take Dr. Robinson=s deposition.

2. Wage Loss Benefits

The employee also contends that the compensation judge erred in denying his claim for temporary total disability benefits after August 7, 2002. His argument in this regard reads in entirety as follows:

Although the compensation judge correctly found that the employee was not terminated for Amisconduct,@ he nonetheless denied ongoing TTD after August 7, 2002. It is not clear whether the judge denied the TTD based on the apportionment dispute, or for other reasons. The employee appealed the denial of TTD, rehabilitation, medical bills and the finding of maximum medical improvement pending the determination of the apportionment dispute.

The employee=s argument on this point has no merit. Again, the determinative issue here was not apportionment but causation. Moreover, the basis for the judge=s denial of temporary total disability benefits after August 7, 2002, was very obviously based on his conclusion that the employee=s March 2002 work injury was merely temporary and did not contribute to the employee=s disability during the period at issue. That conclusion is amply supported by the opinion of Dr. Yellin, who reported that the employee=s March 2002 injury had aggravated his preexisting wrist condition on a temporary basis and that the aggravation would have resolved two to three months after the injury date, at maximum.

The employee acknowledges that this case Ainvolved a choice of experts@ but contends that the evidence was Aoverwhelming@ that the employee sustained a significant injury on March 27, 2002. At one point in his brief, he asserts that eight different providers Atook a history linking the employee=s ongoing problems to his work injury.@ However, several of those providers assumed that a boat had fallen on the employee=s wrist, which, as the compensation judge noted, was not the case.^[4] Moreover, the number of medical reports or opinions supporting a particular outcome is a factor for the compensation judge to weigh and is virtually irrelevant for purposes of determining whether the judge=s decision is supported by substantial evidence. As such, the compensation judge was entitled to accept Dr. Yellin=s opinion even if it was, as the employee contends, the only opinion denying a causal connection between the employee=s work injury and his ongoing symptoms. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985) (a compensation judge=s choice between conflicting expert opinions is generally upheld if the facts assumed by the expert are supported by substantial evidence).

Because the compensation judge=s temporary injury finding, and resulting denial of wage loss benefits as of August 7, 2002, is supported by substantial evidence in the record, including the opinion of Dr. Yellin, we affirm the judge=s decision in its entirety.

^[1] The employee died a few days prior to the date his attorney filed the appeal in this matter. After oral argument on the issues of standing and jurisdiction, the employee=s surviving spouse was substituted as party to the proceedings. Twa v. Lund Boat Co., slip op. (W.C.C.A. Dec.10, 2003). For convenience, we will continue to refer to the employee as the appealing party.

^[2] As indicated previously, the employer and insurer liable for the employee=s 1991 injury were not party to these proceedings.

^[3] He indicated only that the case Ainvolv[ed] complex medical-legal issues regarding [the employer and insurer=s denial of] medical treatment@ and that the employee=s attorney Abelieves that the testimony of Dr. Gary L. Robinson is crucial to an accurate determination of the employee=s disability.@

^[4] We would also note that the records of one of the providers cited by the employee in this regard were not submitted at hearing but were merely attached to the employee=s brief. It is axiomatic that evidence not submitted at hearing may not be considered on appeal. See Gollop v. Shale H. Gollop D.D.S., 389 N.W.2d, 38 W.C.D. 757 (Minn. 1987).