RANDALL S. VIKE, Employee/Appellant, v. HORWITZ, INC., and CNA INS. COS., Employer-Insurer.

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 1, 2004

HEADNOTES

MAXIMUM MEDICAL IMPROVEMENT.  Substantial evidence supports the compensation judge=s decision that the employee reached maximum medical improvement from his work injury.

Affirmed.

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

Compensation Judge: Rolf G. Hagen

Attorneys:  Harold Sadoff, Law Office of Harold Sadoff, Minneapolis, MN, for the Appellant.  Philip C. Warner, Law Offices of Joseph M. Stocco, Edina, MN, for the Respondents.

OPINION

DAVID A. STOFFERAHN, Judge

The employee appeals from the compensation judge=s decision that he has reached maximum medical improvement from his work injury and is not entitled to continuing temporary total disability benefits.  We affirm.

BACKGROUND

Randall Vike, the employee, was working as a steamfitter/pipefitter for the employer, Horwitz, Inc., on January 2, 2002, when he was injured on the job.  The employee was moving hoses on a job site in Richfield, Minnesota, when he slipped on a pipe which was covered by snow.  The employee described doing the splits when he fell and experienced immediate pain in his neck and lower back. 

The employee first sought treatment for his injury on January 5, 2002, when he saw Dr. Robert Kurtz in Edgerton, Wisconsin, the employee=s home town.  The employee reported symptoms to Dr. Kurtz of pain in his lower back, numbness in his right leg and right arm, and numbness in his left arm when using it.  The employee saw Dr. Kurtz on six occasions, the last date being January 25, 2002, when Dr. Kurtz released the employee to return to regular work with no anticipated restrictions. 

The employee returned to the job site on January 28, 2002, and advised the employer that he wanted light-duty work.  He was sent home instead.  The employee then sought additional treatment with a chiropractor in Hastings, Minnesota, since he was temporarily living in Empire, Minnesota.  He first saw Dr. Gerald Rupp on January 29, 2002, with complaints of low back pain and pain radiating down his right leg.  He saw Dr. Rupp three times and at the last visit on February 2, Dr. Rupp recommended an MRI.

The employee saw Dr. Lon Peterson at Regina Medical Center in Hastings on February 8, 2002. The employee advised Dr. Peterson that he had pain in his right lower back, right buttock, both testicles and in his left leg and that he also had numbness in his left arm at night. On examination, Dr. Peterson found limited range of motion in the lumbar spine and tenderness in the lumbar spine on palpation.  Dr. Peterson took the employee off work completely and recommended an MRI.  The MRI was done on February 13, 2002 and was read as showing degenerative disc disease at the L4-5 level with a disc protrusion into the L4 nerve root canal.  The employee then saw Dr. Peterson again on February 21 and advised him that he would be contacting a specialist near his home.  The employee advised the doctor that his left leg symptoms had resolved but that he continued to have low back and right leg pain. Dr. Peterson did not examine the employee but released him to work which would not require lifting over ten pounds or more than occasional bending, twisting and kneeling.  The employee did not return to work.

The employee then saw Dr. Todd Trier in the neurosurgery department of the Dean Clinic in Madison, Wisconsin, on March 12, 2002.  The employee presented with complaints of low back and neck pain with radicular symptoms. Dr. Trier did not make a specific diagnosis but recommended a cervical MRI.  In his chart note of April 5, 2002, Dr. Trier stated that the cervical MRI showed no clinically significant disc disease or foraminal stenosis of the cervical spine.  At a follow-up visit on May 14, Dr. Trier noted slow progress in the employee=s condition and recommended continued physical therapy and an appointment with an occupational medicine practitioner.  He did not believe the employee=s condition needed surgical consideration. 

On June 4, 2002, the employee saw Dr. Thomas McCoy in the occupational medicine department at the Dean Clinic.  Dr. McCoy concluded that appropriate treatment for the employee would best be determined by a rehabilitation medicine specialist since the employee=s situation did not represent an acute care problem.  The employee was referred by Dr. McCoy to Dr. James Leonard at the Department of Orthopedics and Rehabilitation, University of Wisconsin Hospitals and Clinics in Madison. 

The employee first saw Dr. Leonard on July 9, 2002, and continued to treat with Dr. Leonard thereafter.  Dr. Leonard found on examination that the employee=s low back range of motion was limited and that the employee had spasm in his low back when doing this procedure. Dr. Leonard initially diagnosed a lumbar strain and recommended a second lumbar MRI scan which was done on July 18, 2002.  Dr. Leonard also restricted the employee from all employment.  The MRI report indicated bilateral L4-L5 facet hypertrophy causing significant bilateral neural foraminal narrowing.  After the MRI, the employee had bilateral L4-L5 foraminal epidural injections.  The employee returned to Dr. Leonard on October 14, 2002, and reported that the injections did not have a major impact on his pain.  On the same visit, Dr. Leonard did a lidocaine trigger point injection in the right lumbosacral area.  Based on the employee=s report of pain relief, Dr. Leonard recommended bilateral sacroiliac joint injections which were done in October.  The employee reported to Dr. Leonard on his return visit in November 18  that the injections did not have a major impact on his pain. Dr. Leonard commented in his chart note that he was Aconfused regarding Mr. Vike=s persistent pain status.@ Dr. Leonard then recommended a bone scan which was determined to be normal.

Dr. Leonard also prescribed a Awater program@ with a physical therapist and referred the employee to a chiropractor in March 2003.  In his chart note of April 16, 2003, Dr. Leonard stated that the employee had significant improvement in his low back pain and cervical pain.  On examination, Dr. Leonard found range of motion in the lumbar spine which was limited by stiffness and pain with palpation in the L4-5 and L5-S1 areas.  Dr. Leonard diagnosed chronic refractory low back pain and neck pain.  He recommended a continuation of the employee=s treatment plan and kept the employee off work. 

The employee was evaluated by Dr. Paul Cederberg at the request of the employer and insurer on March 24, 2003.  Dr. Cederberg reviewed the employee=s records and performed a physical examination which had no positive findings.  Dr. Cederberg diagnosed an L4-5 disc protrusion with right L4 radiculitis.  Dr. Cederberg concluded that the employee could return to work with no lifting over 20 pounds and stated that the employee was at maximum medical improvement. 

When the employee saw Dr. Leonard on June 2, 2003, he noted that he was continuing with his physical therapy program and continuing with his medication.  Dr. Leonard found limited range of motion on examination of the lumbar spine because of stiffness and tenderness with palpation in the lumbar spine.  Dr. Leonard recommended the employee continue his treatment program and also recommended a functional capacity evaluation.  He continued to restrict the employee from all employment. 

The functional capacity evaluation was apparently performed in July 2003 and according to Dr. Leonard=s chart notes demonstrated work restrictions of 20 pound lifting and an  indication that the restrictions would be permanent.  Dr. Leonard recommended additional bilateral nerve blocks at that point.  Those injections were done and when the employee returned to Dr. Leonard on September 3, 2003, he reported that the injections had relieved his pain for two or three weeks but that the pain was coming back.  On examination, Dr. Leonard found limited lumbar mobility and  tenderness in the lumbosacral spine.  Because of the employee=s pain complaints, Dr. Leonard recommended a surgical consultation and he continued to restrict the employee from work. Dr. Leonard stated AIf surgery is not an option, then we will look at obtaining some closure to his Workers Compensation case. Otherwise, I would state he is not at an end of healing to this point in time.@

The report of Dr. Cederberg was served on the employee on March 27, 2003 and on June 9, 2003 the employer and insurer filed a Notice of Intention to Discontinue Compensation, seeking to discontinue temporary total disability benefits on the basis that the employee had reached maximum medical improvement and was not entitled to temporary total disability benefits after June 24, 2003.  The employee requested an administrative conference and after benefits were ceased by order of the compensation judge at the conference, the employee requested a formal hearing.  The hearing took place on September 25, 2003, before Compensation Judge Rolf Hagen and was limited to the issues of whether the employee had reached maximum medical improvement from the effects of his January 2, 2002 injury and whether temporary total disability benefits were owed to the employee from June 24, 2003 and continuing.  In his Findings and Order, served and filed on October 27, 2003, the compensation judge determined that the employee had reached maximum medical improvement and was not entitled to temporary total disability benefits after June 24, 2003.  The employee appeals.

DECISION

The employee appeals from the compensation judge=s determination that he reached maximum medical improvement. Maximum medical improvement is the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated.  Minn. Stat. ' 176.011, subd. 25.  A finding of maximum medical improvement is one of fact for the compensation judge to make after considering medical opinions, records, and other evidence, but  a medical opinion is not necessarily controlling.  Hammer v. Mark Hagen Plumbing, 435 N.W.2d 525, 41 W.C.D. 624 (Minn. 1989).  The question for this court is whether substantial evidence exists to support the compensation judge=s decision on this issue.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).

In this case the compensation judge specifically adopted the opinion of the independent medical examiner, Dr. Paul Cederberg, that the employee had reached maximum medical improvement as of the date of his evaluation.  The employee argues that the compensation judge=s reliance on Dr. Cederberg=s opinion was inappropriate since, according to the employee, Dr. Cederberg did not have adequate foundation for his opinion.  We disagree. 

Dr. Cederberg=s opinion was based on his review of the medical records and on his examination of the employee.  The employee does not identify any records which Dr. Cederberg did not review but argues instead that Dr. Cederberg did not use the same diagnosis as that of the treating doctors and did not specifically refer to the employee=s left arm complaints.  Dr. Cederberg was not required to adopt other physicians= diagnoses  in order to establish foundation for his opinion. With regard to the employee=s left arm and cervical complaints, we note that the employee was not treated for those conditions once he began seeing Dr. Leonard.  Dr. Cederberg=s opinion had the requisite foundation and it was not error for the compensation judge to rely on that opinion.  Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1998).  

There is support in the record beyond the opinion of Dr. Cederberg for the compensation judge=s determination.  Dr. Cederberg concluded that the employee was able to work with a lifting restriction of 20 pounds, the same restriction which was imposed by the functional capacity evaluation done at the request of the employee=s treating physician in July  2003.  Although the employee testified at hearing that his condition was gradually improving, that testimony is not consistent with the medical records which indicate that the employee had the same complaints and the same subjective findings on examination during the entire time he was treated by Dr. Leonard.  The employee contends that Dr. Leonard was of the opinion that the employee had not reached the end of his healing period, a concept in the Wisconsin workers compensation law which appears to be generally equivalent to maximum medical improvement. However, Dr. Leonard actually noted that the healing period was not ended if surgery was an option. A fair reading of Dr. Leonard=s records is that no additional improvement would be  anticipated in the absence of surgery. We find substantial support in the record for the compensation judge=s determination that the employee reached maximum medical improvement from his January 2, 2002, work injury as of March 27, 2003. 

The employee has also filed a motion for remand, requesting that this matter be referred back to the compensation judge for a new hearing on the basis of Anewly discovered evidence.@  We decline to do so.  The evidence consists of medical records and reports generated after the hearing by the employee=s treating doctors on the question of his continued improvement and were, therefore, not in existence at the time of hearing.  This new evidence is not evidence of a misdiagnosis or of information overlooked by the employee=s doctors.  The evidence presented does not support vacating the compensation judge=s decision.  Monson v. White Bear Mitsubishi, 663 N.W.2d 534, 63 W.C.D. 337 (Minn. 2003).  While Minn. Stat. ' 176.461 gives this court authority to set aside a compensation judge=s decision, it is not the purpose of the statute to permit repeated litigation of factual issues already determined on the basis of competent evidence.  Jacobson v. Uptown Transfer & Storage Co., 268 Minn. 336, 129 N.W.2d 41, 23 W.C.D. 231 (1964). 

The employee also raises on appeal the date when temporary total disability benefits were to be discontinued, arguing that 90 days from the date of service is not June 24, 2003, but rather June 25, 2003.  This issue was not raised before the compensation judge and the parties agreed to the date used by the compensation judge.  We will not address an issue not raised at hearing.

The decision of the compensation judge is affirmed.