RICHARD A. WEBSTER, Employee/Appellant, v. MIDNITE EXPRESS, INC., UNINSURED, Employer, and SPECIAL COMPENSATION FUND.

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 20, 2004

No. WC04-134

HEADNOTES

JURISDICTION - OUT-OF-STATE EMPLOYMENT; STATUTES CONSTRUED - MINN. STAT. ' 176.041, SUBD. 4.  The compensation judge erred in finding that Minnesota lacked subject matter jurisdiction to determine the employee=s claim for medical benefits where the employee (a Minnesota resident, employed by a North Dakota employer and injured in Minnesota) completed and sent an affidavit renouncing and foregoing further workers= compensation benefits in North Dakota, did not, thereafter seek benefits in North Dakota, and there was no evidence the employee's counsel participated in any North Dakota claim or attempted to "hedge" such that the employee's rights in North Dakota would be preserved.  

EVIDENCE - RES JUDICATA.  Where the decision of the North Dakota Workers Compensation Bureau involved a claim for physical therapy treatment from July 11 to September 17, 2002, and the employee=s claim for medical expenses in Minnesota covered the period from November 5, 2002 to January 2, 2003, the doctrine of res judicata is not applicable in considering the effect of the Bureau=s prior decision.

EVIDENCE - MEDICAL EXPERT OPINION; CAUSATION - TEMPORARY AGGRAVATION.  Where Dr. Segal reviewed the employee=s medical records, obtained a history from the employee and performed a physical examination, the opinions of Dr. Segal were adequately founded and the compensation judge did not err in accepting his opinion that the employee=s work-related injury was temporary and had resolved, and the employee=s treatment after July 11, 2002 was not due to his personal injury.

Affirmed in part and reversed in part.

Determined by Johnson, C.J., Wilson, J., and Pederson, J.

Compensation Judge: Paul V. Rieke

Attorneys:  Jeffrey R. Hannig, Hannig & Assocs., Fargo, ND, for the Appellant.  Michael D. Aafedt and Susan M. Stepaniak, Aafedt, Forde, Gray, Monson & Hager, for the Respondent.

OPINION

THOMAS L. JOHNSON, Judge

The employee appeals the compensation judge=s finding the employee did not forego his claim for workers= compensation benefits in North Dakota and the judge=s conclusion that Minnesota does not have jurisdiction over the employee=s claims for workers= compensation benefits.  We reverse.  The employee further appeals the compensation judge=s finding the June 28, 2001, work injury was a temporary strain that resolved by November 2002.  We affirm.

BACKGROUND

Richard A. Webster, the employee, sustained a personal injury to his neck and upper back on June 28, 2001, while working for Midnite Express Inc., the employer.  On that date, the employer was uninsured for workers= compensation liability in the State of Minnesota but was insured in North Dakota.  At the time of his injury, the employee was a Minnesota resident and was injured in Minnesota in the performance of his work duties for the employer.

In July 2001, the employee sought treatment from Paul Shogren, D.C., complaining of neck and shoulder pain with severe headaches following his motor vehicle accident.  X-rays showed mild degenerative changes at C5 and C6.  The doctor commenced a regimen of chiropractic adjustments and muscle stimulation.  The employee additionally treated with Dr. Shogren on nine  occasions through August 15, 2001.

On July 13, 2001, the employee presented to the employer a completed North Dakota Workers= Compensation Benefits Form which the employer submitted to North Dakota Workers= Compensation (NDWC).  On August 8, 2001, the employee=s claim was accepted by the NDWC and Dr. Shrogren=s July and August bills were paid.

On February 25, 2002, the employee was examined by Dr. Andrew J. Hvidston, an orthopedic surgeon.  The employee complained of stiffness in his neck, tightness between the shoulder blades and headaches following his June 28, 2001 work-related injury.  On examination, Dr. Hvidston noted limited cervical extension and concluded the employee had sustained a neck injury.  The doctor recommended the employee see a neurologist to deal with the headaches and dizziness.  The employee returned to see Dr. Shogren on March 1, 2002, who also recommended the employee see a neurologist.  The employee then saw Dr. Ross Pettit, a neurologist, on May 15, 2002.  The doctor diagnosed recurrent neck pain with pain radiating into both arms, bilateral hand numbness and chronic daily headaches all of which the doctor related to the employee=s personal injury.  An MRI scan of the cervical spine on May 31, 2002, showed a small to moderate broad-based left paricentral disc protrusion at C6-7 that minimally flattened the ventral cord on the left and mild to moderate spondylotic foraminal narrowing at multiple levels.  An EMG in June 2002, demonstrated entrapment neuropathy of the right median nerve at the wrist.  On June 12, 2002, Dr. Pettit diagnosed cervical degenerative disc disease that he stated was currently asymptomatic, a history of blackouts that had resolved and a history of chronic daily headaches.  The doctor opined the employee was predisposed to neck pain which was aggravated by his motor vehicle accident.  Dr. Pettit also diagnosed right carpal tunnel syndrome that he opined was unrelated to the employee=s motor vehicle accident.  Dr. Pettit recommended the employee see his family physician for a trial of anti-inflammatory medication and conservative physical therapy.   

The employee saw Paul Klein, a registered nurse, on June 18, 2002.  Mr. Klein diagnosed a cervical disc protrusion and prescribed anti-inflammatory medication.  In July, Mr. Klein received authority from NDWC to commence physical therapy, which took place in July, August and September 2002.  On July 31, 2002, Mr. Klein reported the physical therapy had helped the employee=s condition and the employee reported his pain was decreasing.  On August 28, 2002, Mr. Klein recommended continued physical therapy.  On September 9, 2002, Mr. Klein reported the employee continued to have limited functional ability due to fatigue in the trapezium and in his arms.

The employee filed a claim in North Dakota seeking temporary total disability benefits from March 1, 2002.  The employee=s claim was denied and he requested reconsideration of the denial.  In July 2002, the NDWC awarded the employee wage loss benefits from March 1 through June 12, 2002, but denied benefits thereafter.  On August 8, 2002, the employee appealed the decision of NDWC.  On October 14, 2002, while the appeal was pending, the employee retained John A. Winters, Esquire, of Crookston, Minnesota.  Mr. Winters advised the employee he had a claim for workers= compensation benefits under Minnesota law.  On October 23, 2002, Mr. Winters filed a Medical Request in Minnesota seeking payment for physical therapy provided by Paul Klein.

On October 30, 2002, the NDWC Bureau issued its decision on the employee=s appeal which stated, in part,

ORDER

IT IS ORDERED that claimant is entitled to continued payment of reasonable and necessary medical expenses according to the N.D. Medical and Hospital Fee Schedule for treatment directly related to the June 28, 2001, work injury;

IT IS FURTHER ORDERED that claimant is not entitled to any benefits relating to his right carpal tunnel syndrome in connection with this claim;

IT IS FURTHER ORDERED that temporary total disability benefits be paid from March 1, 2002, through June 12, 2002;

IT IS FURTHER ORDERED that absent a significant change in claimant=s compensable medical condition and absent proof of wage loss caused by a significant change in claimant=s compensable medical condition, disability benefits after June 12, 2002, are denied;

On November 26, 2002, the Minnesota Special Compensation Fund filed a Medical Response denying the claims asserted by the employee in his Medical Request.  In June 2003, North Dakota informed the employee that due to his pending claim for workers= compensation benefits in Minnesota, his workers= compensation benefits in North Dakota were being suspended as of October 28, 2002, pending resolution of the Minnesota claim.

On August 21, 2003, the employee signed an Affidavit, stating, in pertinent part,

I did not realize that my injury was covered by the Minnesota workers= compensation system until I conferred with Attorney John Winters in Crookston, Minnesota  in October, 2002.  At no time was I informed by any representative of Midnite Express that I had a right to submit my workers= compensation claim to Minnesota.

* * *

After being informed of my rights under the Minnesota Workers= Compensation Act by my present attorney, Jeffrey R. Hanning, I hereby voluntarily renounce and forego any further worker=s compensation benefits under the North Dakota workers= compensation system.

The Affidavit was mailed to the North Dakota Work Force Safety and Insurance Agency, formerly NDWC, by the employee=s attorney on August 28, 2003.  The employee has received no response from North Dakota.

On November 11, 2003, Dr. Nolan Segal saw the employee at the request of the Special Compensation Fund.  Dr. Segal took a history from the employee, reviewed his medical records and conducted a physical examination.  The doctor concluded the employee may have sustained a minor neck and upper back strain as a result of a June 28, 2001, injury.  Dr. Segal opined the employee reached maximum medical improvement from the results of his personal injury by March 15, 2002, and found no evidence of any significant ongoing injury.  The doctor opined the employee=s physical therapy and treatments after July 11, 2002, were not due to his personal injury but were due to an underlying degenerative condition.  Dr. Segal rated no permanent partial disability and opined the employee did require work restrictions but stated they were due to underlying arthritis not the June 2001 personal injury.

The employee=s claim for Minnesota workers= compensation benefits was heard by a compensation judge in December 2003.  In a Findings and Order served and filed January 27, 2004, the compensation judge found the employee had not foregone his claim in North Dakota and concluded that Minnesota did not have jurisdiction over the employee=s claims for Minnesota workers= compensation benefits.  The compensation judge further accepted the opinion of Dr. Segal and found the employee=s injury was a temporary strain that resolved by July 11, 2002.  The employee appeals.

DECISION

1.  Minnesota Jurisdiction

The employee argues that since all of his freight hauls commenced and ended in Minnesota and at least 27 percent of his mileage was incurred in Minnesota, he performed the primary duties of his employment inside Minnesota.  Accordingly, the employee contends Minn. Stat. ' 176.041, subd. 4, is not applicable in this case.  Alternatively, if the statute is applicable, the employee contends he has foregone his right to receive North Dakota benefits.  Accordingly, the employee argues, the compensation judge=s decision that Minnesota lacks jurisdiction is legally erroneous and must be reversed.  We agree.

Minn. Stat. ' 176.041, subd. 4, states,

Out of state employments.  If an employee who regularly performs the primary duties of employment outside of this state or is hired to perform the primary duties of employment outside of this state, receives an injury within this state in the employ of the same employer, such injury shall be covered within the provisions of this chapter if the employee chooses to forego any workers= compensation claim resulting from the injury that the employee may have a right to pursue in some other state, provided that the special compensation fund is not liable for payment of benefits pursuant to section 176.183 if the employer is not insured against workers= compensation liability pursuant to this chapter and the employee is a nonresident of Minnesota on the date of the personal injury.

In Flink v. K & K Constr. & Repair, Inc., 33 W.C.D. 9, (W.C.C.A. 1980), the employee was injured in Minnesota while working for a North Dakota employer.  The employee filed a claim in North Dakota which was denied by NDWC.  The employee filed an objection to the denial and a hearing was scheduled in North Dakota.  The employee did not appear for the hearing and the claim was dismissed.  The employee later consulted with a Minnesota attorney and filed a claim petition in Minnesota.  Thereafter, the employee received a letter from an attorney for NDWC which stated that by claiming compensation in Minnesota, the employee would forego any workers= compensation claim in North Dakota.  On these facts, this court held the filing of a claim petition in Minnesota clearly indicated the employee had foregone any workers= compensation claim he may have had in North Dakota and, therefore, met the requirements of Minn. Stat. ' 176.041, subd. 4. 

In Stolpa v. Swanson Heavy Moving Co., 315 N.W.2d 615, 34 W.C.D. 433 (Minn. 1982), a Wisconsin resident driving for a Wisconsin employer was injured in Minnesota and received benefits under the Wisconsin workers= compensation law.  Mr. Stolpa later retained a Minnesota attorney who filed a claim petition on his behalf in Minnesota.  In affirming the compensation judge=s award of benefits, the court stated,

Mere acceptance of the Wisconsin benefits is not equivalent to a choice of that law on the part of the employee or to his pursuing a claim for benefits in that state.  Thus, the language of the statute itself does not warrant a construction which precludes coverage of  employee=s claim unless he repays the Wisconsin benefits prior to filing his claim petition here. . . .  We hold that the statutory language itself warrants a construction which permits an injured employee, in spite of his acceptance of compensation voluntarily paid by a compensation insurer pursuant to the laws of another state, to make an affirmative election of Minnesota coverage by filing a claim petition in this state after obtaining legal advice concerning his rights.  The filing of that petition is, in effect, an intelligent choice on the employee=s part to forego any workers= compensation claim resulting from the injury that he may have a right to pursue in some other state.

The court stated the legislative intent of the statute was Aplainly to deny coverage under the law of this state to an out-of-state employee injured here only if, with full knowledge of his rights, he has filed a claim and pursued it to an award, settlement or denial of compensation in another state.@  In such case, the employee has then made an affirmative choice of law which precludes the employee from seeking compensation in this state.  An employee, however, who obtains legal advice in Minnesota and files a claim petition under our statutes demonstrates compliance with the requirements of Minn. Stat. ' 176.041, subd. 4, requiring the employee to choose to forego any workers= compensation claim the employee could pursue in another state. 

In Pauli v. Pneumatic Sys., Inc., 328 N.W. 2d 743, 35 W.C.D. 551 (Minn. 1983),  the employee, a resident of Oregon working for an Oregon trucking corporation, sustained a work injury while in Minnesota.  The employee filed a claim for benefits in Oregon which was paid and the Oregon Workers= Compensation Board ultimately ordered the claim closed.  Thereafter, the employee filed a claim petition in Minnesota.  The employer and insurer denied Minnesota had jurisdiction over the claim.  Five weeks after filing the claim petition in Minnesota, the employee=s attorney filed a request for a hearing before the Oregon Board in order to preserve the employee=s rights in Oregon in the event Minnesota did not have jurisdiction.  At no time did the employee dismiss the appeal in Oregon.  Further, the employee filed with the compensation judge in Minnesota an affidavit that indicated the employee wanted to preserve jurisdiction under Oregon law pending a ruling on Minnesota jurisdiction.  On appeal, the Workers= Compensation Court of Appeals concluded the employee=s Minnesota claim was barred because he had not foregone his rights under the Oregon workers= compensation act.  In affirming the WCCA, the Supreme Court stated that when an employee, with the advice and assistance of counsel, files legal papers to request a hearing in another state, the employee chooses to forego any workers= compensation claim in Minnesota.  The court held that under Minn. Stat. ' 176.041, subd. 4, the employee cannot Ahedge@ such that if the employee lost in Minnesota, the employee could continue a claim in Oregon.  The court stated Mr. Pauli=s reliance on the Stolpa case was misplaced because he acted more affirmatively than did Mr. Stolpa by making a claim, with the aid of counsel, before the Oregon Board and at the time of the hearing before the compensation judge, had not dismissed his pending appeal in Oregon.

The respondents contend the Pauli case is controlling here because the employee pursued several appeals of his claim in North Dakota, essentially exhausted the North Dakota Workers= Compensation process prior to initiating his claim in Minnesota, and did not dismiss his North Dakota claim.  Further, they contend the employee did not file his affidavit until ten months after he first sought legal advice in Minnesota and filed a Medical Request.  The respondents argue the employee=s medical request was simply an attempt to hedge in the event he received an unfavorable decision in his North Dakota appeal.  These facts, the respondents contend, evidence the employee=s intent not to forego his claim in North Dakota and  provide substantial evidence in support for the compensation judge=s decision.  We disagree.

Under North Dakota law, if an employee applies for benefits from another state for the same injury, the employee=s right to future North Dakota benefits will be suspended pending resolution on the employee=s claim in that other state.^[1]  The appeal of the decision of the North Dakota Workers Compensation Bureau, filed in July 2002, was initiated by the employee prior to retaining counsel in Minnesota.  There is no evidence the employee=s Minnesota counsel participated in that appeal or, in any manner, sought to Ahedge@ such that the employee=s rights in North Dakota would be preserved pending a resolution of his Minnesota claim.  Rather, in his August 21, 2003 affidavit, the employee agreed to renounce and forego any further workers= compensation benefits in North Dakota.  The employee=s attorney filed a medical request in Minnesota and did not, thereafter, seek benefits for his client in North Dakota.  On these facts, we conclude the employee did choose to forego any future workers= compensation claims he may have had in North Dakota within the meaning of Minn. Stat. ' 176.041, subd 4.  The compensation judge=s decision to the contrary is reversed.

2.  Temporary Injury - Res Judicata

Citing Trautman v. Standard Oil of Indiana, American Oil Division, 263 N.W. 2d  809 (Minn. 1978), the appellant asserts a decision of the North Dakota Workers Compensation Bureau must be given full faith and credit in the Minnesota courts and is, therefore, res judicata.  In this case, NDWC specifically approved physical therapy treatments from July 11 to September 17, 2002.^[2]  In its October 30, 2002 Order, the Bureau ordered that the employee was entitled to continued payment of reasonable and necessary medical expenses for treatment of his work injury.  The Bureau=s finding of compensability the appellant contends, is, res judicata and binding on the compensation judge.  Accordingly, the appellant argues, Dr. Segal=s opinions have no legal significance and the compensation judge erred in denying payment of the claimed medical expenses.  We disagree.

In Trautman, the employee was injured at a terminal operated by American Oil in Minnesota.  The North Dakota Workers Compensation Bureau awarded the employee benefits and named American Oil as the employer.  Thereafter, the employee brought a common-law action in Minnesota against American Oil alleging negligence.  American Oil asserted it had no common-law liability under North Dakota=s exclusive remedy law.  The trial court granted summary judgment in favor of American Oil on the basis that the decision of the North Dakota Bureau was res judicata as to the existence of an employment relationship between the plaintiff and defendant and that the decision of the bureau was entitled to full faith and credit in the proceeding before the Minnesota court.  On appeal, the Supreme Court affirmed the conclusion that the decision of the North Dakota Bureau that the employee was employed by the America Oil Division of Standard Oil was res judicata and entitled to full faith and credit in Minnesota.

The principle of res judicata "bars subsequent proceedings to determine claims which were litigated in a prior proceeding."  Alexander v. Kenneth R. Lalonde Enters., 288 N.W. 2d 18, 20, 32 W.C.D. 312, 314 (Minn. 1980).  In workers= compensation cases, the doctrine of  res judicata does not bar litigation of issues not specifically litigated previously.  Westendorf v. Campbell Soup Co., 309 Minn. 550, 243 N.W. 2d 157, 28 W.C.D. 460 (1976).  Res judicata is not, however, rigidly applied and the focus is on Awhether its application would work an injustice on the party against whom estoppel is urged.@  Johnson v. Consolidated Freightways, 420 N.W. 2d 608, 613-614 (Minn. 1988). 

The Minnesota Supreme Court has suggested that in worker=s compensation cases, principles of res judicata primarily govern with respect to the periods of benefits at issue.  Lindberg v. J & D Enters., 543 N.W.2d 90 (Minn. 1996).  Thus, decisions regarding entitlement to workers= compensation benefits are generally res judicata only regarding the period for which the benefits were sought.  See, e.g., Saenger v. Liberty Carton Co., 316 N.W. 2d 737, 34 W.C.D. 499 (Minn. 1982); Tottenham v. Eaton Char-Lynn Corp., 43 W.C.D. 71 (W.C.C.A. 1990); Sjerven v. Strite-Anderson Mfg. Co., 45 W.C.D. 469 (W.C.C.A. 1991).  The claim before the compensation judge in this proceeding was entitlement to medical expenses for physical therapy treatment undergone by the employee between November 5, 2002 and January 2, 2003.  That issue was not decided by the North Dakota Bureau.  There is no decision by the Bureau on the issue of entitlement to medical benefits between November 2002 and January 2003 which must be afforded full faith and credit in Minnesota.  Accordingly, the doctrine of res judicata is not applicable.

3.  Medical Expert Opinion - Foundation

The employee contends Dr. Segal=s opinion that the employee=s medical treatment after July 11, 2002, was not causally related to his personal injury is based on the doctor=s diagnosis of pre-existing degenerative arthritis, the employee=s statement on his application to the NDWC indicating he had symptoms in the same area of his body in May 1998, and the employee=s treatment by a chiropractor in Staples, Minnesota, to the employee=s neck and shoulder area in 1990 and 1991.  See Pet. Ex. 4.  The appellant contends the medical records document no treatment to the employee=s neck, shoulder or upper back from 1991 until 2001 and contain no evidence of restrictions placed on the employee=s activities related to this alleged pre-existing condition.  To conclude, the employee argues, that minor back complaints in 1991 and possible minor upper back complaints in 1998, for which there is no record of treatment, is the cause of the employee=s current medical care, is an opinion without adequate foundation.  We are not persuaded.

Dr. Segal reviewed the employee=s medical records, obtained a history from the employee and performed a physical examination.  As a general rule, this level of medical expertise and practical experience establishes competency to render an expert medical opinion.  Reinhardt v. Colton, 337 N.W. 2d 88 (Minn. 1983).  Dr. Segal=s diagnosis of pre-existing degenerative arthritis was based, in part, on the 2002 MRI scan of the cervical spine that showed a small, left lateral disc herniation with  spurring.  The doctor stated these changes would not have resulted from the June 28, 2001 injury and pre-dated that injury.  Dr. Segal also opined the employee demonstrated some evidence of symptom magnification.  Finally, the doctor stated that on the date of his examination, the employee demonstrated a full range of motion of the cervical spine with no neurologic deficits.  We conclude the opinions of Dr. Segal were adequately founded and the compensation judge could reasonably rely upon them.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The decision of the compensation judge that the employee=s injury was temporary is affirmed.^[3]