JENNIFER J. TAYLOR AURA, Employee/Appellant, v. HOMEWATCH LIVING ASSISTANCE and MIGA/GAB ROBINS, Employer-Insurer, and ABBOTT NORTHWESTERN HOSP., NORTH MEM=L HEALTH CARE, UNIVERSITY OF MINN. PHYSICIANS, PARK NICOLLET, ORTHOPEDIC MED. & SURGERY, LTD., TWIN CITIES ORTHOPEDICS, SUBURBAN RADIOLOGIC CONSULTANTS, MINNEAPOLIS CLINIC of NEUROLOGY, METHODIST HOSP., FAIRVIEW UNIVERSITY-SOUTHDALE, FAIRVIEW SOUTHDALE HOSP., CENTER for DIAGNOSTIC IMAGING, APPLE VALLEY MED. CTR., ORTHOPAEDIC SURGEONS, LTD., DR. PAUL BIEWEN and MINNESOTA LUNG CTR., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 31, 2005
No. WC04-266
HEADNOTES
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including well-founded medical expert opinion, supports the compensation judge=s determination that the employee=s knee condition after December 7, 2001, was not causally related to her work injury of June 6, 2000.
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s finding that as of October 30, 2000, the employee had no restrictions on her work activities as a result of her June 6, 2000, personal injury, and her denial of wage loss benefits thereafter.
WAGES - CALCULATION. Where the employer had been in business only a short time before the employee=s injury, the employee was hired just four days prior to her injury, and the employee=s work included an unusual 24-hour assignment on the day of injury, the compensation judge did not err in calculating the employee=s wage on her hourly earnings, excluding the amount earned by the employee on the day of injury.
PENALTIES; JURISDICTION - SUBJECT MATTER. The compensation judge properly held she did not have subject matter jurisdiction to hear and determine a claim for penalties against either MIGA or against the employer.
Affirmed.
Determined by: Johnson, C.J., Wilson, J. and Pederson, J.
Compensation Judge: Jennifer Patterson
Attorneys: David G. Johnson, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Appellant. Nathan O. Krahn and Barbara Bloom, Rider Bennett, Minneapolis, MN, for the Respondents.
OPINION
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge=s findings (1) of no causal relationship between the employee=s June 9, 2000, personal injury and her knee condition after December 7, 2001; (2) that as of October 30, 2000, the employee had no work restrictions as a result of her personal injury; (3) calculating the employee=s weekly wage based solely on her hourly earnings; and (4) that she lacked jurisdiction to consider the employee=s claim for penalties under Minn. Stat. 176.225, subd. 1, against MIGA. We affirm.
BACKGROUND
Jennifer J. Taylor Aura, the employee, was hired by Homewatch Living Assistance, the employer, on June 5, 2000. On June 9, 2000, the employee sustained a personal injury arising out of her employment with the employer whose claims are currently administered by the Minnesota Insurance Guaranty Association (MIGA)/GAB Robins.
The employee was taken to the emergency room at Methodist Hospital complaining of left knee pain following a fall. The employee was treated and released. The next day, the employee saw Dr. Douglas Jewson at the Park Nicollet Clinic. The doctor placed the employee in a knee immobilizer, prescribed pain medication and took the employee off work. On June 15, 2000, Dr. Paul Johnson diagnosed a left knee contusion with possible patellar instability and/or ligamentous injury. The doctor kept the employee off work and prescribed physical therapy. Ultimately, Dr. Johnson performed a left knee arthroscopy and partial medial meniscectomy. The employee did not do well following surgery and was again hospitalized on September 5, 2000, for a post-operative left superficial venous thrombosis. The employee was discharged on September 8, 2000, but then readmitted on September 9, 2000, with a pulmonary embolism. There is no dispute the employee=s treatment for the venous thrombosis and pulmonary embolism were causally related to her June 9, 2000, personal injury.
Following her surgery and hospitalizations, the employee continued to treat with Dr. Johnson. By October 30, 2000, the employee stated the pain she had in the lateral area of her knee was completely gone but she did complain of some pain in the infrapatellar area with some intermittent swelling. On examination, Dr. Johnson noted the employee had good range of motion with no significant swelling in her knee or leg. The doctor recommended continued physical therapy and released the employee to return to work Awith no limitations, with ability to work as she was able to tolerate.@ (Pet. Ex. C.)
The employee saw Dr. Kavyon Riggi on January 8, 2001, seeking a second opinion for pain on the anterior aspect of her left knee with an intermittent popping sensation. X-rays of the knee showed no underlying degenerative arthritis. Dr. Riggi concluded the employee=s findings were consistent with patellar tendinitis and told the employee she would likely make slow, steady progress for a year after the knee surgery and would not likely require any additional surgical intervention.
The employee returned to see Dr. Paul Johnson on February 3, 2001, stating she slipped on ice and twisted her left knee. The doctor diagnosed a sprained knee and prescribed a straight-leg immobilizer. By February 20, Dr. Johnson noted the employee appeared to have developed chronic knee pain following her injury and recommended additional therapy.
The employee saw Dr. Steven Moen on November 20, 2001, on referral from her family physician. The employee complained of extreme left knee pain and an inability to kneel, squat, run or sit for long periods. The doctor diagnosed probable patellofemoral syndrome symptoms versus mechanical symptoms from a chondral defect in the medial femoral condyle. Dr. Moen ordered an MRI scan which was unremarkable with no evidence of ligamentous derangement, a meniscal tear or articular condylar abnormalities. By report dated December 7, 2001, Dr. Moen concluded the small piece of cartilage removed by Dr. Johnson was not causing any symptoms. Rather, the doctor opined most of the employee=s symptoms were coming from her patellofemoral compartment and recommended anti-inflammatory medication, physical therapy, a knee sleeve, and activity modification. In May 2002, Dr. Moen noted the employee=s subjective complaints outweighed her objective findings and again stated the chrondral segment was not causing her symptoms. The doctor recommended no further surgical intervention but felt a pain program might be appropriate.
The employee saw Dr. Robert LaPrade at the University of Minnesota Physicians on July 11, 2002. The employee complained of persistent left knee pain, instability and decreased range of motion. The doctor recommended a knee brace and prescribed further physical therapy. Dr. LaPrade ordered an MRI arthrogram which demonstrated some chondromalcia of the medial compartment but with no other significant pathology. The doctor stated the employee presented a Achallenge as to the etiology of her left knee pain.@ (Pet. Ex. Q.) In January 2003, Dr. LaPrade performed an osteotomy of the employee=s left knee. By report dated March 3, 2004, Dr. LaPrade stated,
The arthroscopic findings at the time of her surgery on January 28, 2003 demonstrated that she had evidence of a chondral defect at the far anteromedial aspect of her medial femoral condyle and had evidence of undergoing a previous partial medial meniscectomy. The far medial aspect of her medial femoral condyle also showed evidence of grade III chondromalacia in a swath which was directly over her meniscus, or where the meniscus had been previously. The location of this articular cartilage defect would indicate via a high probability that it was either caused by her original meniscal tear or was caused by the fact that she did not have the normal cushioning effect of her medial meniscus in this location and subsequently developed an articular cartilage defect.
Based upon this clinical radiographic evidence, I would state with a high probability that her original injury was a significant contributing factor to her need for surgery on January 28, 2003. (Pet. Ex. A.)
Dr. Larry Stern examined the employee on two occasions at the request of the employer. Following an examination in December 2000, Dr. Stern diagnosed a tear of the left medial meniscus, status post arthrosopic partial medial meniscectomy secondary to the employee=s June 9, 2000 personal injury. The doctor opined the employee had reached maximum medical improvement, sustained a two percent whole body disability, and required no further medical care or restrictions. Dr. Stern reexamined the employee in April 2004, and again took a history from the employee and reviewed her medical records. The doctor diagnosed status post arthroscopic partial medial meniscectomy in September 2000, and status post left knee arthroscopy with debridement and proximal tibial opening wedge osteotomy with allograft bone graft in January 2003. The doctor stated the employee=s significant subjective complaints of pain made no sense in view of the minimal findings at the time of the osteotomy or the minimal findings on the 2002 MRI scan. Dr. Stern opined the surgery in January 2003 was unrelated to the June 9, 2000, personal injury and opined there was no connection between the work injury and the employee=s current complaints of knee pain.
The employee filed a claim petition seeking workers= compensation benefits resulting from the June 9, 2000, personal injury. In a Findings and Order, served and filed August 5, 2004, the compensation judge found the employee had no restrictions on her work activities from and after December 1, 2000, and denied the employee=s claim for wage loss benefits thereafter. The compensation judge further found the employee=s left knee symptoms and the treatment she received for those symptoms after December 7, 2001, were not causally related to the June 9, 2000, work injury. Accordingly, the judge denied the employee=s claims for medical benefits from and after December 7, 2001. The employee appeals.
DECISION
1. Causal Relationship
The compensation judge found there existed no causal relationship between the employee=s work injury and her treatment after December 7, 2001. This determination was based, in part, upon the medical opinions of Dr. Moen and Dr. Stern. Their opinions, the appellant contends, lacked foundation and the compensation judge erroneously relied upon them. Accordingly, the employee asserts, the compensation judge=s causation finding must be reversed.
The appellant argues Dr. Moen=s involvement with the employee=s treatment was minimal and his opinions were based largely on the December 2001 MRI scan which was read as essentially unremarkable. Based, in part, upon the scan, the doctor concluded the employee=s symptoms were coming from the patellofemoral compartment. This conclusion, the appellant contends, was disproved by Dr. LaPrade, who found two substantial defects in the employee=s knee which warranted surgery. Similarly, the appellant argues Dr. Stern=s opinions were also based on the December 2001 MRI scan. The appellant further contends Dr. Stern lacks the experience and expertise of Dr. LaPrade in treating knee conditions. The employee argues Dr. Stern failed to cite any medical authority supporting his opinions and refused to accept circumstantial evidence in considering the causation opinion. For these reasons, the appellants contend the compensation judge erred in relying upon the opinions of Dr. Moen and Dr. Stern. We are not persuaded.
Both Dr. Moen and Dr. Stern obtained histories from the employee, reviewed her medical records, and performed physical examinations. 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). Even assuming Dr. LaPrade has more experience and/or expertise in dealing with knee injuries than do Dr. Moen and Dr. Stern, that fact does not go to the competency of either doctor to render an opinion, but rather to the weight to be afforded such opinions by the compensation judge.
Dr. Moen ordered an MRI scan of the employee=s left knee which was performed in December of 2001. Dr. Cooper Gundry of Medical Scanning Consultants read the scan and concluded it was an A[e]ssentially unremarkable MRI examination of the knee. There is no evidence of ligamentous derangement or meniscal tear.@ In an office note dated December 7, 2001, Dr. Moen repeated Dr. Gundry=s conclusion as stated above and added,
More specifically, he [Dr. Gundry] talks about the bone marrow signal of the distal femur and proximal tibia is preserved without evidence of bone marrow contusion or occult osseous injury. He does not see any articular condylar abnormalities involving the medial or lateral joint space compartments.
(Pet. Ex. N.) Dr. Stern also reviewed Dr. Gundry=s report and repeated the same conclusions as Dr. Moen. In addition, Dr. Stern reviewed Dr. LaPrade=s medical records and his surgical report. Contrary to the appellants= contention, Dr. Stern disagrees that the MRI scan was proven to be inaccurate by Dr. LaPrade=s physical findings. Rather, Dr. Stern stated the tibial osteotomy was done for Athe most minimal objective findings I have ever seen.@ (Resp. Ex. 15 at 30). Additionally, Dr. Stern referred to multiple MRI scans which he stated demonstrated no significant abnormality of any type including the October 4, 2003, contrast-enhanced scan which showed the medial compartment was completely normal. Accordingly, Dr. Stern concluded there was no orthopedic basis to connect the employee=s subsequent symptoms and operative findings to the work injury and initial arthroscopy.
Certainly, the records and reports of Dr. LaPrade would support a different outcome in this case. We do not, however, agree that Dr. LaPrade=s medical records render the opinions of Dr. Moen and Dr. Stern without foundation. The opinion of Dr. LaPrade differs from those of Dr. Stern and Dr. Moen and it is for the compensation judge to resolve any dispute in expert testimony, See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The compensation judge=s causation decision is supported by substantial evidence and is affirmed.
2. Restrictions
The compensation judge found the employee had no restrictions on her work activities due to her personal injury as of October 30, 2000. This finding, the appellant argues, is contrary to the employee=s testimony that her condition did not improve and she had steady pain after October 2000 which significantly limited her ability to work. Although Dr. Stern concluded the employee had no restrictions, the employee argues he ignored the employee=s pain complaints and the findings and conclusions of Dr. Riggi in January 2001. Accordingly, the employee argues the compensation judge=s finding is unsupported by substantial evidence and must be reversed.
Dr. Paul Johnson, the employee=s initial treating physician, saw the employee on October 30, 2000. The employee then stated the pain in the lateral area of her knee was completely gone. On examination, the doctor noted good range of motion with no significant swelling in the knee or the leg. Dr. Johnson released the employee to return to work without limitation. The employee did not seek any further medical care for her left knee until January 3, 2001, when she returned to see Dr. Johnson stating she had twisted her knee that day when she slipped on the ice. Dr. Stern performed his first independent medical examination on December 1, 2000. The doctor concluded there was no orthopedic connection between the June 2000 work injury and the employee=s continued complaints of knee pain and stated the employee needed no restrictions.
The compensation judge accepted the opinions of Dr. Johnson and Dr. Stern regarding restrictions. These opinions are adequately founded and the compensation judge reasonably relied upon them. Substantial evidence, therefore, supports the compensation judge=s finding regarding restrictions and the judge=s decision is affirmed.
3. Weekly Wage
Shortly before June 2000, Dorothy Muffett obtained a franchise to operate Homewatch Living Assistance. The employee was hired by the employer on Monday, June 5, 2000, and then worked 13.5 hours over two days for which she was paid $11.50 per hour. On June 9, 2000, the employee was sent to a person=s home to provide respite care. The employee was scheduled to spend three full days at the person=s home for which she would be paid $125.00 per day. Although she was injured on the first day of the 24-hour assignment, the employee returned to work and completed the three-day assignment and was paid $375.00. The compensation judge computed the employee=s weekly wage based on the $155.25 in hourly earnings, but excluded from the calculation the $125.00 the employee earned on the date of her injury. The employee contends the compensation judge erred by failing to include in the wage computation the $125.00 the employee earned on June 9, 2000.
Ms. Dorothy Muffett testified that all of the home health aides hired by the employer worked on an on call basis and none was guaranteed a fixed number of hours. At the time of the employee=s injury, the employer had only one client for whom it provided 24-hour nursing services and that client was temporary. The employer did not have another 24-hour client until the following winter. All of the other clients of the employer received care on an hourly basis. The employees of the employer typically worked about four hours a day.
The object of wage determination is to Aarrive at a fair approximation of [the employee's] probable future earning power which has been impaired or destroyed because of the injury.@ Knotz v. Viking Carpet, 361 N.W.2d 872, 874, 37 W.C.D. 452, 455 (Minn. 1985) (quoting Sawczuk v. Special Sch. Dist. No. 1, 312 N.W.2d 435, 437-38, 34 W.C.D. 282, 287 (Minn. 1981)). Where the evidence necessary to comply with the statutory wage calculation directives is not available, the compensation judge may use another method to calculate the employee's wage, so long as that method reasonably reflects the employee's injury-related loss of earning power. Decker v. Red Wing Shoe Co., 41 W.C.D. 763 (W.C.C.A. 1988).
In this case, the employer had been in business only a short time before the employee=s injury so there are no wage records of other employees to review as a basis for computing the employee=s weekly wage. Accepting the testimony of Ms. Muffett, it was very unlikely the employee would have received other 24-hour assignments in the future and would likely have worked on a part-time basis only. The compensation judge could conclude the employee=s earnings prior to June 9 were a fair approximation of her impaired earning capacity. It was, therefore, reasonable for the compensation judge to exclude the employee=s earnings on June 9, 2000, and base the weekly wage calculation solely on the employee=s earnings prior thereto. The compensation judge=s weekly wage finding is affirmed.
4. Penalties
The employee sought penalties under Minn. Stat. ' 176.225, subd. 1. The compensation judge concluded she had no jurisdiction to award penalties against MIGA. The employee contends the compensation judge erred as a matter of law in not considering her claim for penalties. She argues a determination of whether the defenses asserted by the respondents were frivolous is a factual decision not involving an interpretation of Minn. Stat. ch. 60C. Further, the employee contends the compensation judge could have ordered the employer to pay the penalty. For these reasons, the employee asks that the case be remanded to the compensation judge for reconsideration of the penalty claim. We decline to do so.
MIGA asserts the employee=s penalty claim is not a covered claim under Minn. Stat. ' 60C.09, subd 2(5). The jurisdiction of a compensation judge and the Workers= Compensation Court of Appeals does not extend to interpreting or applying legislation designed specifically for the handling of claims against an insolvent insurance company. Taft v. Advance United Expressway, 464 N.W.2d 725, 44 W.C.D. 35 (Minn. 1991). Accordingly, the compensation judge correctly determined she had no jurisdiction to order MIGA to pay a penalty.
We conclude also the employer is not liable for a penalty. The stated purpose of the Minnesota Insurance Guaranty Act is to protect Minnesota insurers and claimants against financial loss because of the liquidation of that insurer.
The purposes of this chapter are to provide a mechanism for the payment of covered claims under certain insurance policies and surety bonds, to the extent provided in this chapter, minimize accessibility in payment and to avoid financial loss to claimants or policy holders because of the liquidation of that insurer.
Minn. Stat. ' 60C.02, subd. 2 (2002). AMIGA was created to insure that third-party claimants . . . are compensated for covered claims and that policy holders . . . do not suffer financial loss due to the insolvency of their insurer.@ Unique Sys. Dev., Inc. v. Star Agency, 500 N.W.2d 144, 147 (Minn. App. 1993). The chapter is to be Aliberally construed@ to affect these purposes. Minn. Stat. ' 60C.02, subd. 3.
The purpose of the MIGA Act to is protect both the employee and the employer. The act establishes the claims that are covered under the act and those that are not. MIGA asserts the employee=s penalty claim is not a covered claim under the act. Minn. Stat. ' 60C.12 provides to a claimant a process for obtaining judicial review of what constitutes a covered claim under chapter 60C. To permit an employee to seek payment of a non-covered or denied claim directly from the employer would be contrary to and frustrate the purpose and intent of the act. The compensation judge=s order is affirmed.